"The touch of children is the delight of the body; the delight of the ear is the hearing of their speech".

But, here is the case, where an unmarried girl of 13 years has been knocking at the doors of this Court, the highers forum of the State, praying for issue of a direction to terminate the pregnancy of the child in her womb, on the ground that bearing the unwanted pregnancy of the child of three months made her to become mentally ill and the continuance of pregnancy has caused great anguish in her mind, which would result in a grave injury to her mental health, since the pregnancy was caused by rape.

2. The petitioner D. Rajeswari, belongs to Scheduled Caste. Her father is an agricultural coolie. However, she strived hard to pursue her studies and completed her S.S.L.C. She is residing at Cheeyur Colony village, near Arakonam. She joined + 1 in the Adi-dravidar Welfare Higher Secondary School, Arakonam. Being a day Scholar, she used to go to school by train and then has to walk some distance to reach her school.

3. On 22-11-1995 at about 9.30 a.m., she got down at Arakonam Railway Station from the train and proceeded to her school by walk. On the way, she was intercepted by one Velayutham, who belongs to her village and known to her and was asked to come to a nearby house roofed with countytiles to talk to her. On his persuasion, she went there along with him. Then, she was confined in an inner room, by the said Velayutham, in that house and she was not allowed to go out.

4. On 23-11-1995, the said Valayutham brought the petitioner to Arakonam Railway Station and from there, he took her to different places. Since she was constantly threatened to accompany him, she could not raise any objection. On 24-11-1995, the Petitioner was brought by Velayutham to Ramapuram, village, where during the night, Velayutham, under threat and coercion raped her against her will. In that area, he had many friends most of them are bootleggers, distilling and selling illicit arrack with muscle power and money power. Under such circumstances, she could not do anything.

5. Thereafter, she was taken to several places, like Thozhuvur, Mannur etc. During this period also, he raped her under threat and coercion, against her will. Then, on 2-2-1996, she was forcibly taken to a nearby temple along with his friends, where Velayutham tied 'thali' around her neck against ther consent, under threat and coercion. Out of fear for life, she could not do anything.

6. On 7-2-1996, the said Velayutham forced her to share her bed with his friend one Murugapandi, in the house, in which they were staying. When she refused for the same, Velayutham, forced her and clocked her in a room, in which the said Murugapandi, was waiting. Then, she was raped by Murugapandi, while Velayutham, was waiting outside the room, like a Watchman.

7. On 8-2-1996, Velayutham took the petitioner to Maangadu village, near Poonamallee, where at the instance of Velayutham, one Punniyakodi, said to be his sister's husband raped her in a locked room. When Punniyakodi raped her forcibly, Velayutham took photographs of the raping scene. She was also compelled to stand in-nude, for taking photographs.

8. On 3-3-1996, Velayutham threatened and demanded Rs. 20,000/- from the family of the petitioner for her release and on its failure he intimidated that he would continue to indulge her in prostitution forcibly. He also stated that he would take her to Bombay and settle their life there itself. When she was not agreeable for the same, he snatched the 'thali'tied around her neck by him earlier and took away the same. He also threatened that he would murder her, if she is not amenable for his illegal activities.

9. On 4-3-1996 at about 10-30 a.m. when Velayutham was not in the house, fearing for the danger to her life, she managed to escape for the house, got a bus and then came and joined her parents in Cheyyur colony village. Thereafter, she gave a complaint to the local police, but no proper action was taken by the police, on her complaint. At this stage to her shock and consternation, she came to know that she had conceived.

10. Therefore, she gave a complaint to the Inspector of Police, All Women Police Station, the 3rd respondent herein. But the police refused to take the complaint on file. Next day, she sent a complaint to the All Women Police Station, Arakonam, by registered post. Her father also went to Avadi and presented the complaint to the Avadi Police Station, who also refused to entertain the complaint, on the ground of jurisdiction. Her father again approached All Women Police Station, Thousand Lights, Madras. Though the complaint was received by them, they expressed their inability to take the same on file and to proceed. Therefore, her father approached the Addl. Director General of Police, Madras, who in turn, assured action and directed the petitioner and her father to contact the 2nd respondent, the Deputy Inspector General of Police, Vellore, North Arcot Ambedkar District.

11. On 18-3-1996, the 2nd respondent herein, received the complaint from the petitioner and directed the petitioner to meet the Deputy Superintendent of Police, Arakonam.For nearly ten days, the petitioner was not able to meet the D.S.P. Arakonam. Ultimately on 25-3-1996, she presented the complaint in the Office of D.S.P., Arakonam. That is how, the petitioner, a school going girl of 18 years, a victim of rape had been driven from pillor to post, to set the law in motion, by giving the F.I.R.

12. At this stage, having great anguish in her mind over the continuance of the unwanted pregnancy, she become mentally shocked and having felt that the bearing of the child in her womb would agonise her entire life, she approached this Court for taking proper action on her complaint and for a direction or the medical termination of her pregnancy.

13. The kicking with the legs of a child in the womb of the pregnant woman would be a delightful feeling to her. But, in this case, the victim of 18 years pregnant girl, has come to this Court, crying with tears, that the bearing and rearing of the child in her womb has been a great distress causing traumatic and psychological shock and grave injury to her mental health, since the unwanted pregnancy was caused by rape, requesting for a direction for medical termination of pregnancy.

14. This petition was filed by the petitioner on 29-3-1996 and on 4-4-1996, while admitting the same this Court ordered notice to the respondents.

15. The 3rd respondent filed a counter on 24-4-1996, stating that a complaint was registered on 7-4-1996 in Cr.No. 2/96, for offences under Ss. 366, 376, 498-A, 376 read with Ss. 109 and 506(ii), I.P.C., against Velayutham, Murugapandi and Punniyakodi. Even according to the counter, there was an allegation of rape committed by these persons against her will in her complaint, which was registered and taken up for investigation by the 3rd respondent/police. It is also stated in the counter, that they have no objection for a direction to the medical authorities to terminate the pregnancy of the petitioner, subject to the provisions relating to the Medical Termination of Pregnancy Act.

16. This matter came up before the first vacation Court on 7-5-1996. Raman, J. of this Court considering the urgency of the matter, passed an order, giving direction to have her examined by the Superintendent, Govt. Kasturba Gandhi Hospital for Women & Children, Madras-5, as follows :- "As per Ss. 3(2)(b) and 5, it is necessary to obtain the opinion of not less than two registered medical practitioners, where the pregnancy exceeds 12 weeks but does not exceed 20 weeks. In such circumstances, the petitioner is directed to appear before the Superintendent, Govt. Kasturba Gandhi Hospital, Tripicane, Madras-5 for examination by two doctors. The said Superintendent, shall have the petitioner examined by two doctors and report on 14-5-1996. After receipt of such a report, further orders will be passed on this application".

17. In pursuance of the above order, two doctors/Members of the Medical Board, examined the petitioner on 10-5-1996 and sent a report to this Court that the petitioner was 18 weeks' pregnant, and further suggested that she must be admitted in Hospital for evaluation of her physical fitness, before she is taken up for medical termination of pregnancy. The said report reads thus :-

"D. Rajeswari who appeared before us was examined by us and advised ultrasound examination for estimation of gestational age. Clinically she is 18 weeks' pregnant with external ballotma.

Ultra sonography report is as follows :-

... On indication MTP can be done according to the law upto 20 weeks of gestation with the consent of two medical officers. This candidate D. Rajeswari is an unwed mother and she is 18 weeks' pregnant at present.

If she desires MTP, she must be admitted in the hospital and evaluation of her physical status will be done by the Anaesthetist and Physician at the time of MTP. Only after evaluation she can be taken up for MTP. After 20 weeks', MTP cannot be done".

18. Accordingly, this Court on 16-5-1996, directed the Medical Board of the Hospital to have the evaluation regarding the physical fitness and to send a report on or before 20-5-1996. This order runs as follows :- "On the appearance of the petitioner, the Chairman and Superintendent, Govt. Kasturba Gandhi Hospital for Women and Children, Madras-5 shall have the petitioner's examination for evaluation with regard to physical status by two doctors as expeditiously as possible and to send the report to this Court on or before 20-5-1996. After receipt of such a report, further orders will be passed on this application, on hearing further submissions regarding MTP."

The matter was then adjourned to 21-5-1996.

19. Thereafter, the petitioner was admitted in the Hospital, and the Medical Board conducted evaluation test on her and sent a report to this Court on 21-5-1996, stating that the petitioner was physically fit for M.T.P. That is how, the matter has come up before me for final disposal today (24-5-1996).

21. Curiously, in this case, learned counsel appearing for both the parties would submit and request this Court for issue of a direction for medical termination of the petitioner's pregnancy, in order to save her, who has been impregnated, due to rape by several persons, against her will, from her mental anguish and traumatic and psychological shock.

22. It will be relevant, at this stage, to take note of the provisions of Ss. 3 and 4 of the Medical Termination of Pregnancy Act, 1971. Section 3 of the Act reads thus :-

"Section 3. When pregnancies may be terminated by registered medical practitioners :-

(1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under the Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-sec. (4), a pregnancy may be terminated by a registered medical practitioner -

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that :-

(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

Explanation I - Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as if mentioned in sub-sec. (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4)(a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman."

23. Section 4 of the Act, is as follows :-

"Section 4. Place where pregnancy may be terminated. No termination of pregnancy shall be made in accordance with this Act at any place other than -

(a) a hospital established or maintained by Government, or

(b) a place for the time being approved for the purposes of this Act by Government."

24. A plain reading of these sections would make it clear that with the consent of a major woman, who attained eighteen years, in the hospital, established in a place approved for the purpose of this Act by the Government, the unwanted pregnancy alleged by the pregnant woman, to have been caused by rape, can be terminated by a registered medical practitioner, on the basis of the opinion of two registered medical practitioners formed in good faith, where the length of the pregnancy exceeds 12 weeks, but does not excceed 18 weeks, in a situation, where if the pregnancy was not terminated, there would be a great injury to her physical and mental health.

25. In the light of the above provisions, this Court has to consider, whether the petitioner would come under the above contingencies as provided in the Act, entitling her to approach for a direction for M.T.P. There is no dispute regarding the fact, that she attained 18 years and a major. Admittedly, a case has been registered, on the complaint given by the petitioner against the accused persons, on the allegation that she was raped by them.

26. It is stated in paragraph 32 of the affidavit filed by her in support of the petitioner, that she became pregnant, because of the forcible rape committed by several persons, on various occasions, and because of that she had become mentally ill, and the continuance of pregnancy has caused a great anguish and grave injury, and that the bearing and rearing of the child in her womb would agonise her entire life.

27. The fact of the allegation of rape as contained in the complaint being given by the petitioner, alleging that she was forcibly raped by several persons on different occasions, the copies of petitions presented by the father of the petitioner and the allegations in the affidavit filed by the petitioner in this Court, have not been disputed by the respondents.

28. So, if the Court is satisfied, on the basis of the undisputed facts, as contained in the records filed by both the parties, that the petitioner, a major woman, was impregnated by rape, due to which she is suffering from mental anguish and grave injury to her mental health due to the continuance of such unwanted pregnancy, this Court can, as well, issue a direction to the hospital, established for the purpose of the Act, by Government, for medical termination of pregnancy.

29. To substantiate the prayer made in the petition, learned counsel for the petitioner cited a decision rendered by a Division Bench of this Court in Komalavalli v. C. R. Nair, (1983) Mad LW (Cri) 190 : (1984 Cri LJ 446). The relevant portion of the said judgment is as follows :- "On going through the affidavit filed by the petitioner and after hearing her and her counsel, we are satisfied that the petitioner has been impregnated against her will and that unless the pregnancy is terminated the petitioner will suffer traumatic and psychological shock. Hence, we grant permission to the petitioner to terminate her pregnancy. This is subject to the condition that qualified Gynaecologists examine her and find that the pregnancy can be terminated without detriment to the petitioner's life and safety".

30. Mr. I. Subramaniam, learned Addl. Public Prosecutor, would, as well, cited a decision of another Division Bench of this Court in V. Krishnan v. G. Rajan alias Madipu Rajan, (1994) 1 Mad LW (Cri) 16, and on the strength of this decision, he would contend that the pregnancy can be terminated, with the consent of the pregnant woman, if the pregnancy was caused by rape and that if rape is alleged by the pregnant woman, the Court shall bound to presume that there would be a mental anguish or grave injury to mental health.

31. I have given my anxious consideration to the facts and present position of the case, since it involves, the question of taking away the life of a three months old child from the womb of the petitioner. I have also gone through the affidavit filed by the petitioner, copies of complaints, other records, the counter filed by the respondents, stating no objection for a direction to medical termination of the petitioner's pregnancy. On a thorugh perusal of these records, I am fully satisfied that a prima facie case has been made out by the petitioner, for issuing the direction as prayed for by the petitioner in her petition.

32. The narration of events as given by her in the petition and the counter filed by the respondents, would clearly show that she was raped by several persons on several dates against her will. Besides the allegation of rape, as contained in the records filed by both the parties, the mental anguish and agony and grave injury to her mental health, being suffered by the petitioner due to the continuance of the unwanted pregnancy in her womb is also clearly spelt out by the petitioner herself in her affidavit.

33. Having regard to the factual position as narrated by the petitioner, which was not disputed by the respondents, this Court is constrained to come to the conclusion that unless the pregnancy of the petitioner is terminated, not only the mental shock and anguish would be caused, but also an irreparable loss would be caused to her, which cannot be remedied.

34. In view of the clear observations made by Srinivasan, J. speaking for a Bench, in the above referred V. Krishnan's case (1994 (1) Mad LW (Cri) 16) and in the circumstances of this case, I am fully satisfied that the continuance of the pregnancy in the womb of the petitioner would definitely involve the risk as mentioned in S. 3(2)(b), Explanation-I to S. 3 and S. 3(3) of the Act.

35. In view of the above discussion, I deem it fit to direct the Chairman and Superintendent, Government Kasturba Gandhi Hospital for Women and Children, Madras-5, to conduct medical termination of pregnancy of the petitioner and preserve foetus to enable the investigating agency to ask for DNA test, which would be helpful in order to prove the case of rape alleged by the petitioner, against the persons during the course of trial.

36. Hence, the Chairman and Superintendent of Govt. Kasturba Gandhi Hospital for Women and Children, Madras-5, is hereby directed to conduct medical termination of pregnancy on the petitioner, with the aid of two qualified surgeons with sufficient care and precaution so as to avoid possible harm to the victim, the petitioner herein.

37. Learned counsel for the petitioner submits, that the petitioner is prepared to appear before the medical authorities today (24-5-1996) itself. Accordingly, the said Chairman is further directed to complete the medical termination of pregnancy on the petitioner, within the stipulated period of 20 weeks of pregnancy.

38. The investigating agency in the above case is directed to continue the investigation and make a report under S. 173, Cr.P.C. before the trial Court, as expeditiously as possible.

39. With these directions, Crl.O.P. No. 1862 of 1996 and Crl.M.P. No. 1442 of 1996 are closed.

2. The applicants, who are Doctors, have been charge-sheeted by the learned Sessions Judge, Raisen in S.T. No. 227/98, for offences punishable under Sections 313, 201 and 376 of the I.P.C. There are five accused standing trial, these two are Doctors. One of the accused had committed rape on minor girl aged about 12 years and made her pregnant. The allegations are that two other co-accused took this girl, who was carrying five months pregnancy, to Bhopal to these two doctors, i.e. applicants. They terminated her pregnancy. So the charge on them is firstly causing miscarriage without consent of girl or even her guardian and thus causing disappearance of evidence of rape, which was committed by the accused Riyaz Ahamad. Secondly they committed miscarriage.

3. There are two fold submissions made by the learned counsel for the applicants against the framing of charges - one that the rape was committed allegedly in Raisen District while the miscarriage had taken place at Bhopal. It is argued that carrying out miscarriage without consent is a distinct offence and not connected with rape in any manner, and not a part of the same transaction. So far the offence of miscarriage is concerned, these two Doctors, i.e. applicants, allegedly terminated the pregnancy. The second argument is that in fact, there is a consent of the mother of the girl that she will be in a mental worry for the girl of 12 years to deliver a child, but particularly when she was a unmarried girl and in such circumstances, Section 3 of the Medical Termination of Pregnancy Act, 1971 provides protection to these doctors, even if they carried out miscarriage.

4. The submission of the mother of the prosecutrix given to the Police, has been placed before this Court and in fact, she said that she was never agreeable for this miscarriage and has never given any consent. There is no material to show that the girl (prosecutrix) herself gave any consent. Since this miscarriage cannot be said to be prima facie on consent, the second part of the argument of the learned counsel for the applicants fails.

5. It may be pointed out that the miscarriage punishable under Section 313 of the IPC cannot be necessarily said to be connected with rape. But it depends on facts and circumstances of each case as to whether the persons carrying out miscarriage will be deemed to be acting in the course of same transaction as rape or not. The material factor in this case is that the girl of 12 years was subject matter of sexual act, that would be a rape whosoever committed on her, and that persons related (other co-accused) took her to Bhopal to get miscarriage when she was carrying five months pregnancy. The prosecution assertion is that this was got done to conceal or destroy the evidence of rape, as pregnancy is certainly an evidence of sexual intercourse having been committed on her. So the termination of this pregnancy was concealing or destroying that evidence. Thus, it will be a part of the same transaction as the rape, being an act of destroying evidence. It is also an act punishable under Section 313 of IPC being without consent. The Doctors, who terminated the pregnancy of the girl, have committed the offence under Section 313 of the IPC in the process of destroying the material evidence i.e. offence under Section 201, C.P.C.

6. After considering the facts and circumstances, prima fade, it appears to this Court that in this case, the act. of miscarriage can be taken to destroy evidence and any charge under Section 201 has to be tried with the main charge of rape also. Section 313 is the act, by which offence under Section 201 has been committed. So doctors can be tried together with other accused. They are being tried under Sections 201 of IPC along with 313 of IPC. Section 180 of the Code of Criminal Procedure is a relevant provision, reads as follows : "Section 180: Place of trial where act is offence by reasons of relation to other offence:- When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, the first-mentioned offence may be inquired into or tried by a Court within whose local jurisdiction either act was done."

7. Now, the offence of destroying the evidence punishable under Section 201 of IPC and this offence is connected with offence of Section 313 in this particular case, as miscarriage, is the methodology by which offence under Section 201 was done allegedly. So, these offences can be tried together under this provision. Thus, in the facts and circumstances of the case, the applicants have been charged properly along with other (accused and the case is, prima facie against them as. the prosecutrix is denying having cqnsentect for the miscarriage.

1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure filed at the instance of Sri Murari Mohan Koley, petitioner herein, praying for setting aside of an order dated 11.09.2002 passed by Sri P. P. Roy, learned Sub Divisional Judicial Magistrate, Howrah, whereby he has taken cognizance of the offence under sections 314/201 of the Indian Penal Code and/or for quashing the impugned proceeding being G.R. Case No. 245 of 2001 dated 06.11.2001 under Section 314 of Indian Penal Code.

2. The short facts leading to the filing of this revisional application reads as under:

3. The petitioner herein, is an authorised Medical Practitioner as described under the Medical Termination of Pregnancy Act, 1971 (hereinafter referred to as the 'Act of 1971') and is a public servant and in charge of the Family Planning Department of Howrah General Hospital and also the Bed-in-Charge (Visiting Gynaecologist) and the petitioner is an MBBS (Cal), D.G.O. (Cal), M.D. Gynaecology, and Obstetrics (Cal) D.N.B. (Obstetrics) and Gynaecology, India. The aforesaid post also allows private practice.

4. It has also been alleged that 'Life Care' Nurisng Home located at 185, G.T. Road, Howrah is an authorised place as described under the Medical Termination of Pregnancy Act, 1971 in short Act of 1971.

5. It has been contended further by the petitioner that in the instant case, it been alleged by the prosecution by way of filing a written complaint before the Inspector in Charge, Shibpur Police Station by one Sujit Mondal alleging that he has a daughter aged about 6 months and incidentally his wife Jhuma Mondal again conceived and on 26.09.2001 he got her examined by Dr. Murari Mohan Koley and as per his advice he got her admitted in "Life Care" Nursing Home on 15.10.2001 at 4.30 P.M. for abortion and there was an agreement for payment of Rs. 1000/-.

6. It was further alleged that about 6.30 P.M. on the same date Dr. Koley told him that the condition of the patient is serous and he shall have to keep the patient in the Nursing Home for further five days and he shall have to pay a further sum of Rs. 5000/- and in the meantime the condition of the patient become more deteriorated due to profuse bleeding and Dr. Koley shifted his responsibility advising him to get her admitted immediately in the Howrah General Hospital and without taking money from him requested Howrah General Hospital to get her admitted. Accordingly at about 7 P.M., Jhuma Mondal was admitted in Howrah General Hospital and at about 9.30 P.M. the patient has died.

7. It was further alleged that Dr. Koley, though a Doctor of a Government Hospital and in spite of repeated requests for admitting her in the Howrah General Hospital, he got her admitted in "Life Care" Nursing Home and without doing full treatment, referred the patient to the hospital and in this connection, it has further been alleged that the total mismanagement and the greed of the doctor for money, forced his wife towards death and utter negligence of the doctor caused loss of life of his wife, Jhuma.

8. It was further alleged by the petitioner that as per Post Mortem Report, two injuries were found on the two sides of the Uterus of Jhuma and the Post Mortem was held on 17.10.2001 at Medical College and Hospital, Kolkata and one U.D. case was started by Howrah Police being Howrah Police Station Case No. 345 dated 16.10.2001 and the Police started Shibpur P.S. Case No. 245 of 2001 dated 06.11.2001 under Section 314 of the Indian Penal Code against the present petitioner on the basis of the complaint filed by Sujit Mondal, O.P. No. 2.

9. It has also been contended on behalf of the petitioner that he had no negligence in the connected matter and he was called to Life Care Nursing Home by Sujit Mondal and on seeing the precarious condition of the patient, he took her to Howrah General Hospital, transmitted blood to her and he along with a team of doctors took all measures to save the life of the patient, but unfortunately she died in the O.T. and in treating her he acted as a servant without charging a single farthing for her treatment.

10. It has further been alleged by the petitioner that earlier he filed another application under Section 401 read with Section 482 of the Code of Criminal Procedure whereby, prayer for quashing of the investigation in Shibpur P.S. Case No. 245/01 under Section 314 of the Indian Penal Code was prayed for and ultimately, the petitioner did not press the said application and in consequence thereof, the same was rejected by Justice Sujit Barman Roy (As His Lordship then was) as being 'not pressed' and thereafter the petitioner having granted bail by the Hon'ble High Court on 11.07.2002. Appeared before the Court of Sub Divisional Judicial Magistrate, Howrah on 16.07.2002 when he was granted bail by the learned Court below.

11. It has further been alleged that the police thereafter submitted charge sheet against the petitioner before the learned SDJM, Howrah under Section 314/201 of IPC and the learned Magistrate without applying his judicial mind, mechanically took the cognizance of the case and issued process against the petitioner under Section 314/201 of IPC.

12. Further, it has been contended by the petitioner that for prosecuting him no sanction whatsoever has been obtained and in view of sections 3, 4 and 8 of the Medical Termination of Pregnancy Act, 1971, the petitioner cannot be prosecuted and held liable under Section 314/201 of IPC.

13. Accordingly, being aggrieved by and dissatisfied with the order passed by the learned SDJM, on 11.09.2002 whereby cognizance was taken against him and thereafter process were issued under Section 314/ 201 of IPC against the present petitioner, the petitioner has come up before this Court once again for the reliefs, as mentioned at the outset.

14. This prayer, however, has been opposed by the Opposite Party No. 2 as also by the State of West Bengal alleging mainly that the criminal proceeding can only be quashed at the initial stage, if on the face of the complaint or the FIR, as the case may be, no offence is constituted and the test is that taking the allegations and the complaint, as they are, without adding anything or subtracting anything, if no offence is made out, then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 and at that stage, the High Court will not embark upon any sort of enquiry with a view to ascertain the truthfulness or otherwise of the allegation and the claim, that has been made by the petitioner in the instant case, may be availed of by them before the trial Judge at its appropriate stage.

15. I have heard the learned advocates appearing for the parties at length.

16. The main grievance of the petitioner in this proceeding is that after coming into force the 'Act of 1971', the provisions of IPC relating to miscarriage became subservient to the Act because of non-obstante clause in Section 3 of the aforesaid Act of 1971 and as such the continuation of the proceeding would be regarded as an abuse of the process of the Court and as such it should be quashed. Secondly, it has also been contended that this petitioner being a public servant removable only by a Governor and the act complained of having been done in course of discharge of his official duties, no cognizance should have been taken by the Court without the valid sanction and thirdly, in taking cognizance there was absolute non application of mind by the Court.

17. The learned counsel appearing for the petitioner in elaborating his argument has drawn my attention to the non-obstante clause in Section 3 of Act, 1971, which reads as under:-

"3. (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of Sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or

(b) where the length of the pregnancy does not exceed twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioner are, of opinion formed in goods faith, that -

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in Sub-section (2), account may be taken of the pregnant women's actual or reasonable foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.

(4) (b) Save as other provided in clause(a), no pregnancy shall be terminated except with the consent of the pregnant woman".

18. Drawing my attention to the aforesaid provision of the Act together with Section 8 of the Act of 1971, it has been contended from the side of the petitioner that a registered practitioner who terminates the pregnancy in accordance with the provisions of the Act, is protected from any prosecution for the termination of such pregnancy and by provisions of Section 8 of the Act of 1971 he is also protected from any civil action for compensation for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

19. So, referring to the above, it has been contended on their behalf that the aforesaid provisions of the Act of 1971 taken together with the provisions of sections 88 of IPC and 92 of IPC protects the petitioner for the act done in good faith for the benefit of a person cannot be regarded as an offence. So, for such reason, the continuation of the proceeding against this petitioner would certainly be an abuse of the process of the Court and as such should be quashed.

20. In refuting the aforesaid contention, it has been contended on behalf of the opposite parties that in order to get this protection, the registered medical practitioner must establish that his action done in good faith, but this is not the appropriate stage when the Court is entitled to embark upon any sort of enquiry for ascertaining the fact whether or not the act was done in good faith or otherwise. So, it may be made available to them in course of trial upon proving the same on evidence but at this stage it is not at all available to them.

21. I have given my anxious consideration with regard to the submission made by the parties.

22. It has now become more than settled that in quashing the complaint or the FIR or the charge sheet, the Court has to exercise its power under Section 482 of CrPC with extreme circumspection.

23. In this connection, I may profitably use the dictum of the Apex Court in a decision reported in 1992 Supp. (1) SCC 335 in the case of State of Haryana v. Bhajan Lal wherein it was held by the Apex Court that "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be executed very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice".

24. So, applying the aforesaid decisions in the given situation and having due regard to the rival contentions made by the parties, I am rather prompted to hold that to get the protection of Sub-section (1) of Section 3 of Act of 1971, the petitioner as a medical practitioner has to prove that he has done the same in good faith which may also include the omissions, but this is not the appropriate stage where the Court should go on embarking upon by way of enquiry as to whether it was done in good faith or otherwise and it is required to be left to be decided by the trial Judge at its appropriate stage in the trial.

25. So, that being the position, quashing of the proceeding, as prayed for, on the first ground is of no avail to the petitioner.

26. Now, turning to the second grievance of the petitioner regarding question of obtaining sanction, it may be recorded that for prosecuting a public servant when the Act or action complained of has been performed by him in discharge of his official duties, a sanction is necessary, but it is now quite settled that such sanction may even be obtained at a latter stage of the proceeding and in view of the fact, it cannot be said with certainty that the proceeding would be regarded as void ab initio for not obtaining sanction.

27. So, on this ground also, the claim of the petitioner for quashing of the proceeding is not sustainable for the present.

28. Now, turning to the third claim of the petitioner with regard to the non-application of the mind of the concerned Judge in taking cognizance, it may be stated that the words "take cognizance" have not been defined in the Code itself, but it will certainly mean that when the Magistrate on receiving complaint and/or receiving a police report applies his mind for proceeding further in the concerned matter, then he is said to have taken cognizance of the offence. Examining the impugned order, in the light of the aforesaid settled position of law, it may be held with certainty that in the instant case no objection could be taken in respect of the impugned order passed by the learned Magistrate in the matter of taking cognizance and that being the position, I find no merit in the third claim of the petitioner.

29. Now, in view of what I have stated above, I hold with certainty that in the instant case neither the prayer for quashing as prayed for by the petitioner nor the prayer for setting aside of the order dated 11.09.2002 passed by the learned. SDJM, Howrah in taking cognizance of the offence under Section 314/201 of IPC in the connected matter against the petitioner could be entertained and allowed.

In consequence thereof, the revisional application fails.

Liberty is. however, given to the petitioner to raise all his contentions before the trial Judge at its appropriate stage.

Interim orders, if there be any, stand vacated.

Urgent xerox copies, if applied for, may be made available to the parties with utmost expedition.

1. This order shall dispose of M. Cr. C. No. 7340/2000 filed by Navneet Kumar and Sandeep, which is a second application under Section 439, Cr.PC. This order shall also dispose of M. Cr. C. No. 6993/2000, which is also an application under Section 439, Cr.PC, this is also a second application.

4. The prosecution allegations have already been given in detail in my earlier order dated 11-7-2000 passed in M. Cr. C. No. 3989/2000.

5. The necessary facts for disposal of these petitions are that Smt. Anita was married to Navneet. Applicants Sandeep and Sanjay are younger brothers of said Navneet while Bhagwan Katariya is the father of said Navneet. After the complainant conceived pregnancy, as the allegations are, the busband and the other family members took an exception to it, took her for abortion and without her consent got the abortion done. The girl even before she conceived pregnancy wrote number of letters to her parents, wherein she reflected her pathetic condition. After conceiving pregnancy she wrote certain letters to her parents, wherein she showed that she was hale and hearty and was happy of the events. She however wrote in the letters that the husband and the other family members were not happy with the said condition. Thereafter, she also wrote that contrary to her wishes, the abortion was effected. Thereafter, the matter was reported to the police. The police after making proper investigations arrested these persons.

6. Learned counsel for the applicants submits that under the provisions of Medical Termination of the Pregnancy Act, when the pregnancy is terminated by an expert or a doctor it must be presumed that the said pregnant woman consented to the said termination of the pregnancy and, as the present applicants have filed the documents in support of their contention that the present was a case of consent, no offence is made out and in any case in view of the said documents the applicants are required to be released on bail.

7. Referring to Section 3 of the Medical Termination of Pregnancy Act, 1971, it was submitted that a doctor is entitled to terminate the pregnancy under particular circumstances and if the pregnancy was terminated in accordance with the provisions of law, it must be presumed that without the consent of the woman it could not be done. He has also referred to the bed-head ticket and the other prescriptions to contend that on day one the complainant was not ready for the termination of the pregnancy but later on she gave her consent, therefore, no offence is made out.

8. On the other hand, Dr. N.K. Shukla, Dy. Advocate General for the State, submits that the provisions of Section 3 would not apply to the present case because they regulate and control the doctors in accordance with medical ethics. According to him, Section 3 provides the pregnancy can be terminated under the given set of circumstances, specially when the doctor is of the opinion that termination of the pregnancy is required looking to the health conditions or the condition of the child in the mother's womb. According to him, the letters written by the complainant would clearly show that not only she was treated with cruelty but even the demand of dowry was repeatedly made and the letters would also show that with the bleeding heart she was writing to her parents that she was treated with cruelty and even after the conception none in the matrimonial home was happy. Referring to the letter written after the said abortion, he submits that the contents of the letter would clearly show that the pregnancy was terminated without her consent as a result of conspiracy hatched by the husband and other members.

9. I have heard the parties at length and have gone through the case diary, the letters and the documents filed by the defence in its support.

10. The letters which form part of the case diary clearly show that the said complainant was treated with cruelty and on number of occasions the demand of dowry was made. Yet, another letter would show that after conceiving pregnancy the complainant was writing to her parents that it would be a good news to all of them because her parents would become the maternal grand-father and grand-mother. In the said letter, she had further written that the husband and the other members were not happy about her pregnancy and they were hatching some conspiracy day and night to get rid of something. After she had suffered the abortion, she again wrote a letter to her parents wherein she referred to her pathetic condition. In one letter, she had written that the demand of dowry was made and she was required to bring money from her parents and she was intimated that if the money was not brought including the car, then she would be done to death as her child was done. The letters cannot be condemned as concocted, at this stage. The present is not a case where one letter or two have been seized and produced by the prosecution. In fact, the bundle of the letters were written by the complainant to her parents, to her brothers and others and in each letter she was showing rather projecting her pathetic condition.

11. The documents on which the defence relies upon even if at this stage are taken into consideration do not show as to what was the cause which persuaded the family members and the complainant to go for abortion.

12. In one of the prescriptions, it is shown that the complainant wanted to continue with the pregnancy, while just below it on the second day, the dates though are in dispute, it is clearly written that she wanted to go for termination of pregnancy. There is nothing available with the defence nor there is anything in the case-diary to show and suggest as to what was the reason which suddenly persuaded or promoted the complainant to go for the termination of pregnancy.

13. It is uncomprehendable that a woman who was so happy after conceiving the pregnancy and wanted to go with the same would suddenly change her mind and accept the termination of the pregnancy, of her own.

14. So far as the question relating to the Medical Termination of the Pregnancy Act is concerned, Section 3 on its bare and fair reading would show that the said Section puts an embargo rather an injunction against the doctors who want to go for the termination of the pregnancy. The law says that the pregnancy can be terminated on the satisfaction of the doctor and not otherwise. First of all, the doctor is required to record his satisfaction as to whether the pregnancy should be continued or should be terminated. The doctor is required to record his opinion before terminating the pregnancy on certain particular aspects. Sub-section (2) of Section 3 provides that subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-- (a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Certain exceptions appended to sub-section (2) of Section 3 permit the woman to go for the termination of the pregnancy; in case where she conceives on account of the rape, where the husband and wife to control the family want to limit number of children. Sub-section (4) of Section 3 of the Act provides that no pregnancy of a woman, who has not attained the age of 18 years, or who having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. Clause (b) of sub-section (4) of Section 3 provides that save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

15. Section 3 provides a Code of conduct for the medical practitioners. It does not protect the wrong doers who are not the medical practitioners. For an ordinary man, Section 313, IPC would govern the Courts. Whether the doctor committed an offence or not by terminating the pregnancy would altogether be a different question and it would be for the State and the investigating agency to look into the matter, but simply because some medical practitioners terminated the pregnancy would not provide a ground in favour of the present applicants for their release on bail.

16. Section 3 of the Medical Termination of Pregnancy Act would at all not be applicable to the present case. The present was not a case where the woman is admitting the facts that the pregnancy was terminated with her consent. Even otherwise clause (b) of sub-section (4) of Section 3 of the Act does not give an unfattered right to anybody to go for termination of the pregnancy.

17. Simply because the pregnancy was terminated in a hospital of some repute, the allegation made by the pregnant woman would not be doubted. The Court is required to see in case like present as to whether she was a consenting party, even if the consent is obtained it was of her free will and without exercise of pressure or coercion, or so.

18. In the present case, the documents so far collected by the prosecution clearly show that the girl after conceiving pregnancy was hale and hearty, happy and merry and was informing all concerned that she was happy after conceiving the pregnancy. She was writing to all that the husband and other relations of the husband were not happy and they were hatching some conspiracy.

19. The argument of the learned counsel for the petitioners that she want for termination of the pregnancy voluntarily can straight-way be rejected in view of the contents of the letters which were written by the complainant after suffering the abortion. In the said letters, she was abusing everybody and was writing to all concerned that despite her choice to continue with the pregnancy, the pregnancy was terminated as a result of conspiracy.

20. Present is not a case where for some reason or the other the wife was treated with cruelty. Present is a case where a permanent scar has been carved on the heart and soul of the woman by depriving her of her child.

21. I do not consider present to be the fit cases for grant of bail. The petitions arc rejected.

An Act to provide for the payment of equal remuneration to men and women workers and for the prevention of discrimination, on the ground of sex, against women in the matter of employment and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Twenty-seventh Year of the Republic of India as follows:--

PRELIMINARY CHAPTER I PRELIMINARY 1. Short title, extent and commencement- (1) This Act may be called the Equal Remuneration Act, 1976. (2) It extends to the whole of India. (3) It shall come into force on such date1*, not being later than three years from the passing of this Act, as the Central Government may, by notification, appoint and different dates may be appointed for different establishments or employments.

2. Definitions-In this Act, unless the context otherwise requires,-- (a) "appropriate Government" means,-- (i) in relation to any employment carried on by or under the authority of the Central Government or a railway administration, or in relation to a banking company, a mine, oilfield or major port or any corporation established by or under a Central Act, the Central Government; and (ii) in relation to any other employment, the State Government; (b) "commencement of this Act" means, in relation to an establishment or employment, the date on which this Act comes into force in respect of that establishment or employment; (c) "employer" has the meaning assigned to it in clause (f) of section 2 of the Payment of Gratuity Act, 1972 (39 of 1972); (d) "man" and "woman" mean male and female human beings, respectively, of any age; (e) "notification" means a notification published in the Official Gazette;

1. 8-3-1976: vide Notif. No. S. O. 175(e), dated 6-3-1976, Gazette of India, Extraordinary, Pt. II, Sec. 3(ii). 564 (f) "prescribed" means prescribed by rules made under this Act; (g) "remuneration" means the basic wage or salary, and any additional emoluments whatsoever payable, either in cash or in kind, to a person employed in respect of employment or work done in such employment, if the terms of the contract of employment, express or implied, were fulfilled; (h) "same work or work of a similar nature" means work in respect of which the skill, effort and responsibility required are the same, when performed under similar working conditions, by a man or a woman and the differences, if any, between the skill, effort and responsibility required of a man and those required of a woman are not of practical importance in relation to the terms and conditions of employment; (i) "worker" means a worker in any establishment or employment in respect of which this Act has come into force; (j) words and expressions used in this Act and not defined but defined in the Industrial Disputes Act, 1947 (14 of 1947), shall have the meanings respectively assigned to them in that Act.

3. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the commencement of this Act, or in any instrument having effect under any law for the time being in force.

CHAPTER II PAYMENT OF REMUNERATION AT EQUAL RATES TO MEN AND WOMEN WORKERS AND OTHER MATTERS 4. Duty of employer to pay equal remuneration to men and women workers for same work or work of a similar nature.-(1) No employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of a similar nature. (2) No employer shall, for the purpose of complying with the provisions of sub-section (1), reduce the rate of remuneration of any worker. (3) Where, in an establishment or employment, the rates of remuneration payable before the commencement of this Act for men and women workers for the same work or work of a similar nature are different only on the ground of sex, then the higher (in cases where there are only two rates), or, as the highest (in cases where there are more 565 than two rates), of such rates shall be the rate at which remuneration shall be payable, on and from such commencement, to such men and women workers: Provided that nothing in this sub-section shall be deemed to entitle a worker to the revision of the rate of remuneration payable to him or her with reference to the service rendered by him or her before the commencement of this Act.

5. No discrimination to be made while recruiting men and women workers.-On and from the commencement of this Act, no employer shall, while making recruitment for the same work or work of a similar nature, 1*[or in any condition of service subsequent to recruitment such as promotions, training or transfer,] make any discrimination against women except where the employment of women in such work is prohibited or restricted by or under any law for the time being in force: Provided that the provisions of this section shall not affect any priority or reservation for Scheduled Castes or Scheduled Tribes, ex- servicemen, retrenched employees or any other class or category of persons in the matter of recruitment to the posts in an establishment or employment.

6. Advisory Committee.-(1) For the purpose of providing increasing employment opportunities for women, the appropriate Government shall constitute one or more Advisory Committees to advise it with regard to the extent to which women may be employed in such establishments or employments as the Central Government may, by notification, specify in this behalf. (2) Every Advisory Committee shall consist of not less than ten persons, to be nominated by the appropriate Government, of which one- half shall be women. (3) In tendering its advice, the Advisory Committee shall have regard to the number of women employed in the concerned establishment or employment, the nature of work, hours of work, suitability of women for employment, as the case may be, the need for providing increasing employment opportunities for women, including part-time employment, and such other relevant factors as the Committee may think fit. (4) The Advisory Committee shall regulate its own procedure. (5) The appropriate Government may, after considering the advice tendered to it by the Advisory Committee and after giving to the persons concerned in the establishment or employment an opportunity to make representations, issue such directions in respect of employment of women workers, as the appropriate Government may think fit.

1. Ins. by Act 49 of 1987, s. 2. 566

7. Power of appropriate Government to appoint authorities for hearing and deciding claims and complaints.-(1) The appropriate Government may, by notification, appoint such officers, not below the rank of a Labour Officer, as it thinks fit to be the authorities for the purpose of hearing and deciding-- (a) complaints with regard to the contravention of any provision of this Act; (b) claims arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a similar nature, and may, by the same or subsequent notification, define the local limits within which each such authority shall exercise its jurisdiction. (2) Every complaint or claim referred to in sub-section (1) shall be made in such manner as may be prescribed. (3) If any question arises as to whether two or more works are of the same nature or of a similar nature, it shall be decided by the authority appointed under sub-section (1). (4) Where a complaint or claim is made to the authority appointed under sub-section (1), it may, after giving the applicant and the employer an opportunity of being heard, and after such inquiry as it may consider necessary, direct,-- (i) in the case of a claim arising out of non-payment of wages at equal rates to men and women workers for the same work or work of a similar nature, that payment be made to the worker of the amount by which the wages payable to him exceed the amount actually paid; (ii) in the case of complaint, that adequate steps be taken by the employer so as to ensure that there is no contravention of any provision of this Act. (5) Every authority appointed under sub-section (1) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of taking evidence and of enforcing the attendance of witnesses and compelling the production of documents, and every such authority shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974). (6) Any employer or worker aggrieved by any order made by an authority appointed under sub-section (1), on a complaint or claim may, within thirty days from the date of the order, prefer an appeal to such authority as the appropriate Government may, by notification, specify in this behalf, and that authority may, after hearing the appeal, confirm, modify or reverse the order appealed against and no further appeal shall lie against the order made by such authority. 567 (7) The authority referred to in sub-section (6) may, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the period specified in sub-section (6), allow the appeal to be preferred within a further period of thirty days but not thereafter. (8) The provisions of sub-section (1) of section 33C of the Industrial Disputes Act, 1947 (14 of 1947), shall apply for the recovery of monies due from an employer arising out of the decision of an authority appointed under this section.

MISCELLANEOUS CHAPTER III MISCELLANEOUS 8. Duty of employers to maintain registers.- On and from the commencement of this Act, every employer shall maintain such registers and other documents in relation to the workers employed by him as may be prescribed.

9. Inspectors.- (1) The appropriate Government may, by notification, appoint such persons as it may think fit to be Inspectors for the purpose of making an investigation as to whether the provisions of this Act, or the rules made thereunder, are being complied with by employers, and may define the local limits within which an Inspector may make such investigation. (2) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860). (3) An Inspector may, at any place within the local limits of his jurisdiction,-- (a) enter, at any reasonable time, with such assistance as he thinks fit, any building, factory, premises or vessel; (b) require any employer to produce any register, muster- roll or other documents relating to the employment of workers, and examine such documents; (c) take, on the spot or otherwise, the evidence of any person for the purpose of ascertaining whether the provisions of this Act are being, or have been, complied with; (d) examine the employer, his agent or servant or any other person found in charge of the establishment or any premises connected therewith or any person whom the Inspector has reasonable cause to believe to be, or to have been a worker in the establishment; (e) make copies, or take extracts from, any register or other document maintained in relation to the establishment under this Act. 568 (4) Any person required by an Inspector to produce any register or other document or to give any information shall comply with such requisition. 10. Penalties. 10. Penalties.- (1) If after the commencement of this Act, any employer, being required by or under the Act, so to do-- (a) omits or fails to maintain any register or other document in relation to workers employed by him, or (b) omits or fails to produce any register, muster-roll or other document relating to the employment of workers, or (c) omits or refuses to give any evidence or prevents his agent, servant, or any other person in charge of the establishment, or any worker, from giving evidence, or (d) omits or refuses to give any information, he shall be punishable 1*[with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both]. (2) If, after the commencement of this Act, any employer-- (a) makes any recruitment in contravention of the provisions of this Act, or (b) makes any payment of remuneration at unequal rates to men and women workers, for the same work or work of a similar nature, or (c) makes any discrimination between men and women workers in contravention of the provisions of this Act, or (d) omits or fails to carry out any direction made by the appropriate Government under sub-section (5) of section 6, he shall be punishable 1*[with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences]. (3) If any person being required so to do, omits or refuses to produce to an Inspector any register or other document or to give any information, he shall be punishable with fine which may extend to five hundred rupees.

11. Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

1. Subs. by Act 49 of 1987, s. 3. 569 Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section,-- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director", in relation to a firm, means a partner in the firm.

12. Cognizance and trial of offences-(1) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (2) No court shall take cognizance of an offence punishable under this Act except upon-- (a) its own knowledge or upon a complaint made by the appropriate Government or an officer authorised by it in this behalf, or (b) a complaint made by the person aggrieved by the offence or by any recognised welfare institution or organisation. Explanation.--For the purposes of this sub-section "recognised welfare institution or organisation" means a social welfare institution or organisation recognised in this behalf by the Central or State Government.]

13. Power to make rules.- (1) The Central Government may, by notification, make rules for carrying out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-- (a) the manner in which complaint or claim referred to in sub-section (1) of section 7 shall be made; (b) registers and other documents which an employer is required under section 8 to maintain in relation to the workers employed by him; (c) any other matter which is required to be, or may be, prescribed. (3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any

1. Subs. by Act 49 of 1987, s. 4. 570 modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of any thing previously done under that rule.

14. Power of Central Government to give directions.- The Central Government may give directions to a State Government as to the carrying into execution of this Act in the State.

15. Act not to apply in certain special cases.- Nothing in this Act shall apply-- (a) to cases affecting the terms and conditions of a woman's employment in complying with the requirements of any law giving special treatment to women, or (b) to any special treatment accorded to women in connection with-- (i) the birth or expected birth of a child, or (ii) the terms and conditions relating to retirement, marriage or death or to any provision made in connection with the retirement, marriage or death.]

16. Power to make declaration.- Where the appropriate Government is, on a consideration of all the circumstances of the case, satisfied that the differences in regard to the remuneration, or a particular species of remuneration, of men and women workers in any establishment or employment is based on a factor other than sex, it may, by notification, make a declaration to that effect, and any act of the employer attributable to such a difference shall not be deemed to be a contravention of any provision of this Act.

17. Power to remove difficulties-If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by notification, make any order, not inconsistent with the provisions of this Act, which appears to it to be necessary for the purpose of removing the difficulty: Provided that every such order shall, as soon as may be after it is made, be laid before each House of Parliament.

18. Repeal and saving- (1) The Equal Remuneration Ordinance, 1975 (Ord. 12 of 1975) is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the Ordinance so repealed (including any notification, nomination, appointment, order or direction made thereunder) shall be deemed to have been done or taken under the corresponding provisions of this Act as if this Act were in force when such thing was done or action was taken. -------------

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Twenty-second Year of the Republic of India as follows:-

1. Short title, extent and commencement. 1.Short title, extent and commencement.(1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such, date 1 as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions. In this Act, unless the context otherwise requires,- (a) "guardian" means a person having the care of the person of a minor or a lunatic ; (b) "lunatic" has the meaning assigned to it in section 3 of the Indian Lunacy Act, 1912; (4 of 1912) (c) "minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is to be deemed not to have attained his majority; (d) "registered medical practitioner" means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956) whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act. 3. When pregnancies may be terminated by registered medicalpractitioners.

3.When pregnancies may be terminated by registered medical practitioners.(1) Notwithstanding anything contained in the Indian Penal Code, (45 of 1860) a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

1 1st April 1972, vide Notification No. GSR 2857, dated 19-2- 1972, see Gazette of India, Part II, Sec. 3 (i), p. 708. 172 (2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-(a) where the length of the pregnancy does not exceed twelve weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registerd medical practitioners are of opinion, formed in good faith, that- (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. Explanation I.-Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the angwish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation II.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub- section (2), account may be taken of the pregnant woman's actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian. (b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

4.Place where pregnancy may be terminatedNo termination of pregnancy shall be made in accordance with this Act at any place other than- (a) a hospital established or maintained by Government, or (b) a place for the time being approved for the purpose of this Act by Government. 173

5. Sections 3 and 4 When not to apply(1) The provisions of section 4, and so much of the provision of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman. (2) Notwithstanding anything contained in the Indian Penal Code, (45 of 1860) the termination of a pregnancy by a person who is not a registered medical practitioner shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified. Explanation.-For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by a registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.

6. Power to make rules.(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- (a) the experience or training, or both, which a registered medical practitioner shall have if he intends to terminate any pregnancy under this Act ; and (b) such other matters as are required to be or may be provided by rules made under this Act. (3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be ; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

7. Power to make regulations.(1) The State Government may, by regulations,- (a) require any such opinion as is referred to in sub- section (2) of section 3 to be certified by a registered medical 174 practitioner or practitioners concerned, in such form and at such time as may be specified in such regulations, and the preservation or disposal of such certificates; (b) require any registered medical practitioner, who terminates a pregnancy, to give intimation of such termina- as may be specified in such regulations ; (c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations. (2) The intimation given and the information furnished in pur- suance of regulations made by virtue of clause (b) of sub-section (1) shall be given or furnished, as the case may be, to the Chief Medical Officer of the State. (3) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees.

8. Protection of action taken in good faith.No suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

An Act to regulate the employment of women in certain establishments for certain periods before and after child-birth and to provide for maternity benefit and certain other benefits. BE it enacted by Parliament in the Twelfth Year of the Republic of India as follows:--

1. Short title, extent and commencement:-(1) This Act may be called the Maternity Benefit Act, 1961. (2) It extends to the whole of India 2***. (3) It shall come into force on such date3* as may be notified in this behalf in the Official Gazette,-- 4*[(a) in relation to mines and to any other establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances, by the Central Government; and] (b) in relation to other establishments in a State, by the State Government.

2. Application of Act.5*[(1) It applies, in the first instance,-- (a) to every establishment being a factory, mine or plantation including any such establishment belonging to Government and to every establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances;

(b) to every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months:] Provided that the State Government may, with the approval of the Central Government, after giving not less than two months' notice of its intention of so doing, by notification in the Official Gazette, declare that all or any of the provisions of this Act shall apply also to any other establishment or class of establishments, industrial, commercial, agricultural or otherwise.

(2) 6*[Save as otherwise provided in 7*[sections 5A and 5B], nothing contained in this Act] shall apply to any factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply for the time being.

Definitions.-In this Act, unless the context otherwise requires,--(a) "appropriate Government" means, in relation to an establishment being a mine, 1*[or an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances,] the Central Government and in relation to any other establishment, the State Government; (b) "child" includes a still-born child; (c) "delivery" means the birth of a child; (d) "employer" means-- (i) in relation to an establishment which is under the control of the Government, a person or authority appointed by the Government for the supervision and control of employees or where no person or authority is so appointed, the head of the department; (ii) in relation to an establishment under any local authority, the person appointed by such authority for the supervision and control of employees or where no person is so appointed, the chief executive officer of the local authority; (iii) in any other case, the person who, or the authority which, has the ultimate control over the affairs of the establishment and where the said affairs are entrusted to any other person whether called a manager, managing director, managing agent, or by any other name, such person; 2*[(e) "establishment" means-- (i) a factory; (ii) a mine; (iii) a plantation; (iv) an establishment wherein persons are employed for the exhibition of equestrian, acrobatic and other performances; 3*xxx 4*[(iva) a shop or establishment; or] (v) an establishment to which the provisions of this Act have been declared under sub-section (1) of section 2 to be applicable;] (f) "factory" means a factory as defined in clause (m) of section 2 of the Factories Act, 1948 (63 of 1948);(g) "Inspector" means an Inspector appointed under section 14;

1. Ins. by Act 52 of 1973, s. 4 (w.e.f. 1-3-1975). 2. Subs. by s. 4, ibid., for cl. (e) (w.e.f. 1-3-1975). 3. Omitted by Act 61 of 1988, s. 3 (w.e.f. 10-1-1989). 4. Ins. by s. 3, ibid. (w.e.f. 10-1-1989) 388A (h) "maternity benefit" means the payment referred to in sub-section (1) of section 5; (i) "mine" means a mine as defined in clause (j) of section 2 of the Mines Act, 1952 (35 of 1952); (j) "miscarriage" means expulsion of the contents of a pregnant uterus at any period prior to or during the twenty-sixth week of pregnancy but does not include any miscarriage, the causing of which is punishable under the Indian Penal Code (45 of 1860); (k) "plantation" means a plantation as defined in clause (f) of section 2 of the Plantations Labour Act, 1951 (69 of 1951;) 389 (l) "prescribed" means prescribed by rules made under this Act; (m) "State Government", in relation to a Union territory, means the Administrator thereof; (n) "wages" means all remuneration paid or payable in cash to a woman, if the terms of the contract of employment, express or implied, were fulfilled and includes--

(1) such cash allowances (including dearness allowance and house rent allowance) as a woman is for the time being entitled to;

(2) incentive bonus; and

(3) the money value of the concessional supply of food grains and other articles, but does not include-- (i) any bonus other than incentive bonus; (ii) over-time earnings and any deduction or payment made on account of fines; (iii) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the woman under any law for the time being in force; and (iv) any gratuity payable on the termination of service;

(o) "woman" means a woman employed, whether directly or through any agency, for wages in any establishment.

4. Employment of, or work by, women prohibited during certain period.- (1) No employer shall knowingly employ a woman in any establishment during the six weeks immediately following the day of her delivery or her miscarriage. (2) No woman shall work in any establishment during the six weeks immediately following the day of her delivery or her miscarriage. (3) Without prejudice to the provisions of section 6, no pregnant woman shall, on a request being made by her in this behalf, be required by her employer to do during the period specified in sub- section (4) any work which is of an arduous nature or which involves long hours of standing, or which in any way is likely to interfere with her pregnancy or the normal development of the foetus, or is likely to cause her miscarriage or otherwise to adversely affect her health. 390 (4) The period referred to in sub-section (3) shall be-- (a) the period of one month immediately preceding the period of six weeks, before the date of her expected delivery; (b) any period during the said period of six weeks for which the pregnant woman does not avail of leave of absence under section 6.

5. Right to payment of maternity benefit- 1*[(1) Subject to the provisions of this Act, every woman shall be entitled to, and her employer shall be liable for, the payment of maternity benefit at the rate of the average daily wage for the period of her actual absence, that is to say, the period immediately preceding the day of her delivery, the actual day of her delivery and any period immediately following that day.] Explanation.--For the purpose of this sub-section, the average daily wage means the average of the woman's wages payable to her for the days on which she has worked during the period of three calendar months immediately preceding the date from which she absents herself on account of maternity, 1*[the minimum rate of wage fixed or revised under the Minimum Wages Act, 1948 or ten rupees, whichever is the highest.] (2) No woman shall be entitled to maternity benefit unless she has actually worked in an establishment of the employer from whom she claims maternity benefit, for a period of not less than 1*[eighty days] in the twelve months immediately preceding the date of her expected delivery: Provided that the qualifying period of 1*[eighty days] aforesaid shall not apply to a woman who has immigrated into the State of Assam and was pregnant at the time of the immigration. Explanation.--For the purpose of calculating under this sub- section the days on which a woman has actually worked in the establishment, 1*[the days for which she has been laid off or was on holidays declared under any law for the time being in force to be holidays with wages] during the period of twelve months immediately preceding the date of her expected delivery shall be taken into account. 1*[(3) The maximum period for which any woman shall be entitled to maternity benefit shall be twelve weeks of which not more than six weeks shall precede the date of her expected delivery:] Provided that where a woman dies during this period, the maternity benefit shall be payable only for the days up to and including the day of her death: 1*[Provided further that where a woman, having been delivered of a child, dies during her delivery or during the period immediately following the date of her delivery for which she is entitled for the maternity benefit, leaving behind in either case the child, the employer shall be liable for the maternity benefit for that entire period but if the child also dies during the said period, then, for the days up to and including the date of the death of the child.] -

1. Subs. by Act 61 of 1988, s. 4 (w.e.f. 10-1-1989). 391

5A. Continuance of payment of maternity benefit in certain cases-Every woman entitled to the payment of maternity benefit under this Act shall, notwithstanding the application of the Employees' State Insurance Act, 1948 (34 of 1948), to the factory or other establishment in which she is employed, continue to be so entitled until she becomes qualified to claim maternity benefit under section 50 of that Act.]

5B. Payment of maternity benefit in certain cases.- Every woman-- (a) who is employed in a factory or other establishment to which the provisions of the Employees' State Insurance Act, 1948 (34 of 1948), apply; (b) whose wages (excluding remuneration for overtime work) for a month exceed the amount specified in sub-clause (b) of clause (9) of section 2 of that Act; and (c) who fulfils the conditions specified in sub-section (2) of section 5, shall be entitled to the payment of maternity benefit under this Act.]

6. Notice of claim for maternity benefit and payment thereof.-(1) Any woman employed in an establishment and entitled to maternity benefit under the provisions of this Act may give notice in writing in such form as may be prescribed, to her employer, stating that her maternity benefit and any other amount to which she may be entitled under this Act may be paid to her or to such person as she may nominate in the notice and that she will not work in any establishment during the period for which she receives maternity benefit. (2) In the case of a woman who is pregnant, such notice shall state the date from which she will be absent from work, not being a date earlier than six weeks from the date of her expected delivery. (3) Any woman who has not given the notice when she was pregnant may give such notice as soon as possible after the delivery. 3*[(4) On receipt of the notice, the employer shall permit such woman to absent herself from the establishment during the period for which she receives the maternity benefit.] (5) The amount of maternity benefit for the period preceding the date of her expected delivery shall be paid in advance by the employer to the woman on production of such proof as may be prescribed that the woman is pregnant, and the amount due for the subsequent period shall be paid by the employer to the woman within forty-eight hours of production of such proof as may be prescribed that the woman has been delivered of a child.

1. Ins. by Act 21 of 1972, s. 3 (w.e.f. 1-6-1972). 2. Ins. by Act 53 of 1976, s. 3 (w.e.f. 1-5-1976). 3. Subs. by Act 61 of 1988, s. 5 (w.e.f. 10-7-1989). 392 (6) The failure to give notice under this section shall not disentitle a woman to maternity benefit or any other amount under this Act if she is otherwise entitled to such benefit or amount and in any such case an Inspector may either of his own motion or on an application made to him by the woman, order the payment of such benefit or amount within such period as may be specified in the order.

7. Payment of maternity benefit in case of death of a woman.-If a woman entitled to maternity benefit or any other amount under this Act, dies before receiving such maternity benefit or amount, or where the employer is liable for maternity benefit under the second proviso to sub-section (3) of section 5, the employer shall pay such benefit or amount to the person nominated by the woman in the notice given under section 6 and in case there is no such nominee, to her legal representative.

8. Payment of medical bonus-Every woman entitled to maternity benefit under this Act shall also be entitled to receive from her employer a medical bonus of 1*[two hundred and fifty rupees], if no pre-natal confinement and post-natal care is provided for by the employer free of charge. 9. Leave for miscarriage.

9. Leave for miscarriage.-In case of miscarriage, a woman shall, on production of such proof as may be prescribed, be entitled to leave with wages at the rate of maternity benefit, for a period of six weeks immediately following the day of her miscarriage. 10. Leave for illness arising out of pregnancy, delivery, premature birthof child, or miscarriage. 1

10. Leave for illness arising out of pregnancy, delivery, premature birth of child, or miscarriage.-A woman suffering from illness arising out of pregnancy, delivery, premature birth of child or miscarriage shall, on production of such proof as may be prescribed, be entitled, in addition to the period of absence allowed to her under section 6, or, as the case may be, under section 9, to leave with wages at the rate of maternity benefit for a maximum period of one month.

11. Nursing breaks.- Every woman delivered of a child who returns to duty after such delivery shall, in addition to the interval for rest allowed to her, be allowed in the course of her daily work two breaks of the prescribed duration for nursing the child until the child attains the age of fifteen months.

12. Dismissal during absence of pregnancy- (1) When a woman absents herself from work in accordance with the provisions of this Act, it shall be unlawful for her employer to discharge or dismiss her during or on account of such absence or to give notice of discharge or dismissal on such a day that the notice will expire during such absence, or to vary to her disadvantage any of the conditions of her service. (2) (a) The discharge or dismissal of a woman at any time during her pregnancy, if the woman but for such discharge or dismissal would have been entitled to maternity benefit or medical bonus referred to in section 8, shall not have the effect of depriving her of the maternity benefit or medical bonus: Provided that where the dismissal is for any prescribed gross misconduct, the employer may, by order in writing communicated to the woman, deprive her of the maternity benefit or medical bonus or both. 2*[(b) Any woman deprived of maternity benefit or medical bonus, or both, or discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may, within sixty days from the date on which order of such deprivation or discharge or dismissal is communicated to her, appeal to such authority as may be prescribed, and the decision of that authority on such appeal, whether the woman should or should not be deprived of maternity benefit or medical bonus, or both, or discharged or dismissed shall be final.]

13. No deduction of wages in certain cases-No deduction from the normal and usual daily wages of a woman entitled to maternity benefit under the provisions of this Act shall be made by reason only of-- (a) the nature of work assigned to her by virtue of the provisions contained in sub-section (3) of section 4; or (b) breaks for nursing the child allowed to her under the provisions of section 11.

14. Appointment of Inspectors-The appropriate Government may, by notification in the Official Gazette, appoint such officers as it thinks fit to be Inspectors for the purposes of this Act and may define the local limits of the jurisdiction within which they shall exercise their functions under this Act. 15. Powers and duties of Inspectors.

15. Powers and duties of Inspectors.-An Inspector may, subject to such restrictions or conditions as may be prescribed, exercise all or any of the following powers, namely:-- (a) enter at all reasonable times with such assistants, if any, being persons in the service of the Government or any local or other public authority, as he thinks fit, any premises or place where women are employed or work is given to them in an establishment, for the purposes of examining any registers, records and notices required to be kept or exhibited by or under this Act and require their production for inspection; (b) examine any person whom he finds in any premises or place and who, he has reasonable cause to believe, is employed in the establishment: Provided that no person shall be compelled under this section to answer any question or give any evidence tending to incriminate himself; (c) require the employer to give information regarding the names and addresses of women employed, payments made to them, and applications or notices received from them under this Act; and 394 (d) take copies of any registers and records or notices or any portions thereof.

16. Inspectors to be public servants-Every Inspector appointed under this Act shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code. (45 of 1860.) 17. Power of Inspector to direct payments to be made.

17. Power of Inspector to direct payments to be made.- 1*[(1) Any woman claiming that-- (a) maternity benefit or any other amount to which she is entitled under this Act and any person claiming that payment due under section 7 has been improperly withheld; (b) her employer has discharged or dismissed her during or on account of her absence from work in accordance with the provisions of this Act, may make a complaint to the Inspector. (2) The Inspector may, of his own motion or on receipt of a complaint referred to in sub-section (1), make an inquiry or cause an inquiry to be made and if satisfied that-- (a) payment has been wrongfully withheld, may direct the payment to be made in accordance with his orders; (b) she has been discharged or dismissed during or on account of her absence from work in accordance with the provisions of this Act, may pass such orders as are just and proper according to the circumstances of the case.] (3) Any person aggrieved by the decision of the Inspector under sub-section (2) may, within thirty days from the date on which such decision is communicated to such person, appeal to the prescribed authority. (4) The decision of the prescribed authority where an appeal has been preferred to it under sub-section (3) or of the Inspector where no such appeal has been preferred, shall be final. 1*[(5) Any amount payable under this section shall be recoverable by the Collector on a certificate issued for that amount by the Inspector as an arrear of land revenue.] 18. Forfeiture of maternity benefit.

18. Forfeiture of maternity benefit.- If a woman works in any establishment after she has been permitted by her employer to absent herself under the provisions of section 6 for any period during such authorised absence, she shall forfeit her claim to the maternity benefit for such period. 19. Abstract of Act and rules thereunder to be exhibited.

19. Abstract of Act and rules thereunder to be exhibited.-An abstract of the provisions of this Act and the rules made thereunder in the language or languages of the locality shall be exhibited in a conspicuous place by the employer in every part of the establishment in which women are employed.

20. Registers, etcEvery employer shall prepare and maintain such registers, records and muster-rolls and in such manner as may be prescribed.

21. Penalty for contravention of Act by employer-(1) If any employer fails to pay any amount of maternity benefit to a woman entitled under this Act or discharges or dismisses such woman during or on account of her absence from work in accordance with the provisions of this Act, he shall be punishable with imprisonment which shall not be less than three months but which may extend to one year and with fine which shall not be less than two thousand rupees but which may extend to five thousand rupees: Provided that the court may, for sufficient reasons to be recorded in writing, impose a sentence of imprisonment for a lesser term or fine only in lieu of imprisonment. (2) If any employer contravenes the provisions of this Act or the rules made thereunder, he shall, if no other penalty is elsewhere provided by or under this Act for such contravention, be punishable with imprisonment which may extend to one year, or with fine which may extend to five thousand rupees, or with both: Provided that where the contravention is of any provision regarding maternity benefit or regarding payment of any other amount and such maternity benefit or amount has not already been recovered, the court shall, in addition, recover such maternity benefit or amount as if it were a fine and pay the same to the person entitled thereto.] 1. Subs. by Act 61 of 1988, s. 8 (w.e.f. 10-1-1989). 2. Subs. by s. 9, ibid. (w.e.f. 10-1-1989). 395

22. Penalty for obstructing Inspector. 22. Penalty for obstructing Inspector.-Whoever fails to produce on demand by the Inspector any register or document in his custody kept in pursuance of this Act or the rules made thereunder or conceals or prevents any person from appearing before or being examined by an Inspector shall be punishable with imprisonment 1*[which may extend to one year, or with fine which may extend to five thousand rupees], or with both.

23. Cognizance of offences:-(1) Any aggrieved woman, an office-bearer of a trade union registered under the Trade Unions Act, 1926 (16 of 1926) of which such woman is a member or a voluntary organisation registered under the Societies Registration Act, 1860 (21 of 1860) or an Inspector, may file a complaint regarding the commission of an offence under this Act in any court of competent jurisdiction and no such complaint shall be filed after the expiry of one year from the date on which the offence is alleged to have been committed. (2) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.]

24. Protection of action taken in good faith- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done in pursuance of this Act or of any rule or order made thereunder.

25. Power of Central Government to give directions.-The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of the provisions of this Act and the State Government shall comply with such directions.

26. Power to exempt establishments.-If the appropriate Government is satisfied that having regard to an establishment or a class of establishments providing for the grant of benefits which are not less favourable than those provided in this Act, it is necessary so to do, it may, by notification in the Official Gazette, exempt, subject to such conditions and restrictions, if any, as may be specified in the notification, the establishment or

1. Subs. by Act 61 of 1988, s. 10 (w.e.f. 10-1-1989). 2. Subs. by s. 11, ibid. (w.e.f. 10-1-1989). 396 class of establishments from the operation of all or any of the provisions of this Act or of any rule made thereunder.

27. Effect of laws and agreements inconsistent with this Act.-(1) The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law or in the terms of any award, agreement or contract of service, whether made before or after the coming into force of this Act: Provided that where under any such award, agreement, contract of service or otherwise, a woman is entitled to benefits in respect of any matter which are more favourable to her than those to which she would be entitled under this Act, the woman shall continue to be entitled to the more favourable benefits in respect of that matter, notwithstanding that she is entitled to receive benefits in respect of other matters under this Act. (2) Nothing contained in this Act shall be construed to preclude a woman from entering into an agreement with her employer for granting her rights or privileges in respect of any matter which are more favourable to her than those to which she would be entitled under this Act.

28. Power to make rules.- (1) The appropriate Government may, subject to the condition of previous publication and by notification in the Official Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-- (a) the preparation and maintenance of registers, records and muster-rolls; (b) the exercise of powers (including the inspection of establishments) and the performance of duties by Inspectors for the purposes of this Act; (c) the method of payment of maternity benefit and other benefits under this Act in so far as provision has not been made therefor in this Act; (d) the form of notices under section 6; (e) the nature of proof required under the provisions of this Act; (f) the duration of nursing breaks referred to in section 11; (g) acts which may constitute gross misconduct for purposes of section 12; (h) the authority to which an appeal under clause (b) of sub-section (2) of section 12 shall lie; the form and manner 397 in which such appeal may be made and the procedure to be followed in disposal thereof; (i) the authority to which an appeal shall lie against the decision of the Inspector under section 17; the form and manner in which such appeal may be made and the procedure to be followed in disposal thereof; (j) the form and manner in which complaints may be made to Inspectors under sub-section (1) of section 17 and the procedure to be followed by them when making inquiries or causing inquiries to be made under sub-section (2) of that section; (k) any other matter which is to be, or may be, prescribed. (3) Every rule made by the Central Government under this section shall be laid as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session 1*[or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid,] both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 29. Amendment of Act 69 of 1951.

29. Amendment of Act 69 of 1951.-In section 32 of the Plantations Labour Act, 1951,-- (a) in sub-section (1), the letter and brackets "(a)" before the words "in the case of sickness", the word "and" after the words "sickness allowance" and clause (b) shall be omitted; (b) in sub-section (2), the words "or maternity" shall be omitted.

30. Repeal.- On the application of this Act-- (i) to mines, the Mines Maternity Benefit Act, 1941 (19 of 1941); and (ii) to factories situate in the Union territory of Delhi, the Bombay Maternity Benefit Act, 1929 (Bom. Act VII of 1929); as in force in that territory, shall stand repealed.

An Act to provide for the regulation of the use of pre-natal diagnostic techniques for the purpose of detecting genetic or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex linked disorders and for the prevention of the misuse of such techniques for the purpose of pre-natal sex determination leading to female foeticide, and for matters connected there with or incidental thereto. BE it enacted by Parliament in the Forty-fifth Year of the Republic of India as follows:--

CHAP PRELIMINARY CHAPTER I PRELIMINARY 1. Short title, extent and commencement. (1) This Act may be called the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1944.

(2) It shall extend to the whole of India except the State of Jammu and Kashmir.

2 (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. 2. Definitions. 2. Definitions. In this Act, unless the context otherwise requires,-- (a) "Appropriate Authority" means the Appropriate Authority appointed under section 17; (b) "Board" means the Central Supervisory Board constituted under section 7;(c) "Genetic Counselling Centre" means an institute, hospital, nursing home or any place, by whatever name called, which provides for genetic counselling to patients; (d) "Genetic Clinic" means a clinic, institute, hospital, nursing home or any place, by whatever name called, which is used for conducting pre-natal diagnostic procedures; (e) "Genetic Laboratory" means a laboratory and includes a place where facilities are provided for conducting analysis or tests of samples received from Genetic Clinic for pre-natal diagnostic test; (f) "gynaecologist" means a person who possesses a post- graduate qualification in gynaecology and obstetrics; (g) "medical geneticist" means a person who possesses a degree or diploma or certificate in medical genetics in the field of pre-natal diagnostic techniques or has experience of not less than two years in such field after obtaining-- (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a post-graduate degree in biological sciences; (h) "paediatrician" means a person who possesses a post- graduate qualification in paediatrics; (i) "pre-natal diagnostic procedures" means all gynaecological or obstetrical or medical procedures such as ultrasonography foetoscopy, taking or removing samples of amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman for being sent to a Genetic Laboratory or Genetic Clinic for conducting pre-natal diagnostic test; (j) "pre-natal diagnostic techniques" includes all pre-natal diagnostic procedures and pre-natal diagnostic tests; (k) "pre-natal diagnostic test" means ultrasonography or any test or analysis of amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman conducted to detect genetic or metabolic disorders or chrom somal abnormalities or congential anomalies or naemoglobinopathies or sex-linked diseases; (l) "prescribed" means prescribed by rules made under this Act; (m) "registered medical practitioner" means a medical practitioner who nossesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of 1956.) and whose name has been entered in a State Medical Register; 3 (n) "regulations" means regulations framed by the Board under this Act.

(2) no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall employ or cause to be employed any person who does not possess the prescribed qualifications;

(3) no medical geneticist, gynaecologist paediatrician registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act.

7 REGULATION OF PRE-NATAL DIAGNOSTIC TECHNIQUES

CHAPTER III REGULATION OF PRE-NATAL DIAGNOSTIC TECHNIQUES 4. Regulation of pre-natal diagnostic techniques. 4. Regulation of pre-natal diagnostic techniques. On and from the commencement of this Act,--

(1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause

(2) and after satisfying any of the conditions specified in clause (3); (2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:-- (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;

(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied that any of the following conditions are fulfilled, namely:-- (i) age of the pregnant woman is above thirty-five years; 4 (ii) the pregant woman has undergone of two or more spontaneous abortions or foetal loss; (iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; (iv) the pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease; (v) any other condition as may be specified by the Central Supervisory Board;

(4) no person, being a relative or the husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purpose specified in clause (2).

5. Written consent of pregnant woman and prohibition of communicating the sex of foetus.(1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless-- (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned; (b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman.

(2) No person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the foetus by words, signs or in any other manner.

6. Determination of sex prohibited.On and from the commencement of this Act,-- (a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus; (b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus.

CENTRAL SUPERVISORY BOARD CHAPTER IV CENTRAL SUPERVISORY BOARD }7. Constitution of Central Supervisory Board.(1) The Central Government shall constitute a Board to be known as the Central Supervisory Board to exercise the powers and perform the functions conferred on the Board under this Act. (2) The Board shall consist of-- (a) the Minister in charge of the Ministry or Department of Family Welfare, who shall be the Chairman, ex officio; 5 (b) the Secretary to the Government of India in charge of the Department of Family Welfare, who shall be the Vice-Chairman, ex-officio; (c) two members to be appointed by the Central Government to represent the Ministries of Central Government in charge of Woman and Child Development and of Law and Justice, ex-officio; (d) the Director General of Health Services of the Central Government, ex officio; (e) ten members to be appointed by the Central Government, two each from amongst-- (i) eminent medical geneticists; (ii) eminent gynaecologists and obstetricians; (iii) eminent paediatricians; (iv) eminent social scientists; and (v) representatives of women welfare organisations; (f) three women Members of Parliament, of whom two shall be elected by the House of the People and one by the Council of States; (g) four members to be appointed by the Central Government by rotation to represent the States and the Union territories, two in the alphabetical order and two in the reverse alphabetical order: Provided that no appointment under this clause shall be made except on the recommendation of the State Government or, as the case may be, the Union territory; (h) an officer, not below the rank of a Joint Secretary or equivalent of the Central Government, in charge of Family Welfare, who shall be the Member-Secretary, ex officio. 8. Term of office of members.

8. Term of office of members.(1) The term of office of a member, other than an ex officio member, shall be,-- (a) in case of appointment under clause (e) or clause (f) of sub-section (2) of section 7, three years; and (b) in case of appointment under clause (g) of the said subsection, one year. (2) If a casual vacancy occurs in the office of any other members, whether by reason of his death, resignation or inability to discharge his functions owing to illness or other incapacity, such vacancy shall be filled by the Central Government by making a fresh appointment and the member so appointed shall hold office for the remainder of the term of office of the person in whose place he is so appointed. (3) The Vice-Chairman shall perform such functions as may be assigned to him by the Chairman from time to time. (4) The procedure to be followed by the members in the discharge of their functions shall be such as may be prescribed. 6

9. Meetings of the Board(1) The Board shall meet at such time and place, and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at such meetings) as may be provided by regulations: Provided that the Board shall meet at least once in six months. (2) The Chairman and in his absence the Vice-Chairman shall preside at the meetings of the Board. (3) If for any reason the Chairman or the Vice-Chairman is unable to attend any meeting of the Board, any other member chosen by the members present at the meeting shall preside at the meeting. (4) All questions which come up before any meeting of the Board shall be decided by a majority of the votes of the members present and voting, and in the event of an equality of votes, the Chairman, or in his absence, the person presiding, shall have and exercise a second or casting vote. (5) Members other than ex officio members shall receive such allowances, if any, from the Board as may be prescribed.

10. Vacancies, etc., not to invalidate proceedings of the BoardNo act or proceeding of the Board shall be invalid merely by reason of-- (a) any vacancy in, or any defect in the constitution of, the Board; or (b) any defect in the appointment of a person acting as a member of the Board; or (c) any irregularity in the procedure of the Board not affecting the merits of the case.

11. Temporary association of persons with the Board for particular purposes.(1) The Board may associate with itself, in such manner and for such purposes as may be determined by regulations, any person whose assistance or advice it may desire in carrying out any of the provisions of this Act. (2) A person associated with it by the Board under sub-section (1) for any purpose shall have a right to take part in the discussions relevant to that purpose, but shall not have a right to vote at a meeting of the Board and shall not be a member for any other purpose.

12. Appointment of officers and other employees of the Board.(1) For the purpose of enabling it efficiently to discharge its functions under this Act, the Board may, subject to such regulations as may be made in this bahalf, appoint (whether on deputation or otherwise) such number of officers and other employees as it may consider necessary: Provided that the appointment of such category of officers, as may be specified in such regulations, shall be subject to the approval of the Central Government. (2) Every officer or other employee appointed by the Board shall be subject to such conditions of service and shall be entitled to such remuneration as may be specified in the regulations. 7

13. Authentication of orders and other instruments of the BoardAll orders and decisions of the Board shall be authenticated by the signature of the Chairman or any other member authorised by the Board in this behalf, and all other instruments issued by the Board shall be authenticated by the signature of the Member-Secretary or any other officer of the Board authorised in like manner in this behalf.

14. Disqualifications for appointment as memberA person shall be disqualified for being appointed as a member if, he-- (a) has been convicted and sentenced to imprisonment for an offence which, in the opinion of the Central Government, involves moral turpitude; or (b) is an undischarged insolvent; or (c) is of unsound mind and stands so declared by a competent court; or (d) has been removed or dismissed from the service of the Government or a Corporation owned or controlled by the Government; or (e) has, in the opinion of the Central Government, such financial or other interest in the Board as is likely to affect prejudicially the discharge by him of his functions as a member; or (f) has, in the opinion of the Central Government, been associated with the use or promotion of pre-natal diagnostic technique for determination of sex.

15. Eligibility of member for reappointmentSubject to the other terms and conditions of service as may be prescribed, any person ceasing to be a member shall be eligible for reappointment as such member.

16. Functions of the BoardThe Board shall have the following functions, namely:-- (i) to advise the Government on policy matters relating to use of pre-natal diagnostic techniques; (ii) to review implementation of the Act and the rules made thereunder and recommend changes in the said Act and rules to the Central Government; (iii) to create public awareness against the practice of pre-natal determination of sex and female foeticide; (iv) to lay down code of conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics; (v) any other functions as may be specified under the Act.

APPROPRIATE AUTHORITY AND ADVISORY COMMITTEE CHAPTER V APPROPRIATE AUTHORITY AND ADVISORY COMMITTEE 17. Appropriate Authority and Advisory Committee. (1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act. 8 (2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.

(3) The officers appointed as Appropriate Authorities under sub- section (1) or sub-section (2) shall be,-- (a) when appointed for the whole of the State or the Union territory, of or above the rank of the Joint Director of Health and Family Welfare; and (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit. (4) The Appropriate Authority shall have the following functions, namely:-- (a) to grant, suspend or cancel registration of a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic; (b) to enforce standards prescribed for the Genetic Counselling Centre, Genetic Laboratory and Genetic Clinic; (c) to investigate complaints of breach of the provisions of this Act or the rules made thereunder and take immediate action; and (d) to seek and consider the advice of the Advisory Committee, constituted under sub-section (5), on application for registration and on complaints for suspension or cancellation of registration. (5) The Central Government or the State Government, as the case may be, shall constitute an Advisory Committee for each Appropriate Authority to aid and advise the Appropriate Authority in the discharge of its functions, and shall appoint one of the members of the Advisory Committee to be its Chairman. (6) The Advisory Committee shall consist of-- (a) three medical experts from amongst gynaecologists, obstericians, paediatricians and medical geneticists; (b) one legal expert; (c) one officer to represent the department dealing with information and publicity of the State Government or the Union territory, as the case may be; (d) three eminent social workers of whom not less than one shall be from amongst representatives of women's organisations. (7) No person who, in the opinion of the Central Government or the State Government, as the case may be, has been associated with the use or promotion of pre-natal diagnostic technique for determination of sex shall be appointed as a member of the Advisory Committee. (8) The Advisory Committee may meet as and when it thinks fit or on the request of the Appropriate Authority for consideration of any application for registration or any complaint for suspension or cancellation of registration and to give advice thereon: 9 Provided that the period intervening between any two meetings shall not exceed the prescribed period. (9) The terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee in the discharge of its functions shall be such as may be prescribed.

(1) No person shall open any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic after the commencement of this Act unless such Centre, Laboratory or Clinic is duly registered separately or jointly under this Act. (2) Every application for registration under sub-section (1), shall be made to the Appropriate Authority in such form and in such manner and shall be accompanied by such fees as may be prescribed. (3) Every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged, either partly or exclusively, in counselling or conducting pre-natal diagnostic techniques for any of the purposes mentioned in section 4, immediately before the commencement of this Act, shall apply for registration within sixty days from the date of such commencement. (4) Subject to the provisions of section 6, every Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic engaged in counselling or conducting pre-natal diagnostic techniques shall cease to conduct any such counselling or technique on the expiry of six months from the date of commencement of this Act unless such Centre, Laboratory or Clinic has applied for registration and is so registered separately or jointly or till such application is disposed of, whichever is earlier. (5) No Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall be registered under this Act unless the Appropriate Authority is satisfied that such Centre, Laboratory or Clinic is in a position to provide such facilities, maintain such equipment and standards as may be prescribed.

19. Certificate of registration(1) The Appropriate Authority shall, after holding an inquiry and after satisfying itself that the applicant has complied with all the requirements of this Act and the rules made thereunder and having regard to the advice of the Advisory Committee in this behalf, grant a certificate of registration in the prescribed form jointly or separately to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, as the case may be. (2) If, after the inquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of this Act or the rules, it shall, for reasons to be recorded in writing, reject the application for registration. 10 (3) Every certificate of registration shall be renewed in such manner and after such period and on payment of such fees as may be prescribed. (4) The certificate of registration shall be displayed by the registered Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in a conspicuous place at its place of business.

20. Cancellation or suspension of registration.(1) The Appropriate Authority may suo moto, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice. (2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be. (3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is, of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).

21. Appeal.The Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic may, within thirty days from the date of receipt of the order of suspension or cancellation of registration passed by the Appropriate Authority under section 20, prefer an appeal against such order to-- (i) the Central Government, where the appeal is against the order of the Central Appropriate Authority; and (ii) the State Government, where the appeal is against the order of the State Appropriate Authority, in the prescribed manner.

OFFENCES AND PENALTIES CHAPTER VII OFFENCES AND PENALTIES 22. Prohibition of advertisement relating to pre-natal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue or cause to be issued any advertisement in any manner regarding facilities of pre-natal determination of sex available at such Centre, Laboratory, Clinic or any other place. (2) No person or organisation shall publish or distribute or cause to be published or distributed any advertisement in any manner regarding facilites of pre-natal determination of sex available at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place. 11 (3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees. Explanation.--For the purposes of this section, "advertisement" includes any notice, circular, label wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas.

23. Offences and penalties(1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees. (2) The name of the registered medical practitioner who has been convicted by the court under sub-section (1), shall be reported by the Appropriate Authority to the respective State Medical Council for taking necessary action including the removal of his name from the register of the Council for a period of two years for the first offence and permanently for the subsequent offence. (3) Any person who seeks the aid of a Genetic Councelling Centre, Genetic Laboratory or Genetic Clinic or of a medical geneticist, gynaecologist or registered medical practitioner for conducting pre- natal diagnostic techniques on any pregnant woman (including such woman unless she was compelled to undergo such diagnostic techniques) for purposes other than those specified in clause (2) of section 4, shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.

24. Presumption in the case of conduct of pre-natal diagnostic techniquesNotwithstanding anything in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume unless the contrary is proved that the pregnant woman has been compelled by her husband or the relative to undergo pre-natal diagnotic technique and such person shall be liable for abetment of offence under sub-section (3) of section 23 and shall be punishable for the offence specified under that section.

25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is providedWhoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention. 12

Offences by companies. (1) Where any offence, punishable under this Act has been committed by a company, every person who, at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence punishable under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.--For the purposes of this section,-- (a) "company" means any body corporate and includes a firm or other association of individuals, and (b) "director", in relation to a firm, means a partner in the firm.

27. Offence to be cognizable, non-bailable and non-compoundable. Every offence under this Act shall be cognizable, non-bailable and non-compoundable. 28. Cognizance of offences. 28. Cognizance of offences. (1) No court shall take cognizance of an offence under this Act except on a complaint made by-- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or (b) a person who has given notice of not less than thirty days in the manner prescribed, to the Appropriate Authority, of the alleged offence and of his intention to make a complaint to the court. Explanation.--For the purpose of this clause, "person" includes a social organisation. (2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. (3) Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.

13 MISCELLANEOUS CHAPTER VIII MISCELLANEOUS 29. Maintenance of records. (1) All records, charts, forms, reports, consent letters and all other documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed: Provided that, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such proceedings. (2) All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf. 30. Power to search and seize records, etc. 30. Power to search and seize records, etc. (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, such Authority or any officer authorised thereof in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an office punishable under this Act. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act.

31. Protection of action taken in good faith.No suit, prosecution or other legal proceeding shall lie against the Central or the State Government or the Appropriate Authority or any officer authorised by the Central or State Government or by the Authority for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act. 32. Power to make rules. 32. Power to make rules. (1) The Central Government may make rules for carrying out the provisions of this Act. (2) In particular and without prejudice, to the generality of the foregoing power, such rules may provide for-- (i) the minimum qualifications for persons employed at a registered Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic under clause (1) of section 3; (ii) the form in which consent of a pregnant woman has to be obtained under section 5; (iii) the procedure to be followed by the members of the Central Supervisory Board in the discharge of their functions under sub-section (4) of section 8; 14 (iv) allowances for members other than ex officio members admissible under sub-section (5) of section 9; (v) the period intervening between any two meetings of the Advisory Committee under the proviso to sub-section (8) of section 17; (vi) the terms and conditions subject to which a person may be appointed to the Advisory Committee and the procedure to be followed by such Committee under sub-section (9) of section 17; (vii) the form and manner in which an application shall be made for registration and the fee payable thereof under sub- section (2) of section 18; (viii) the facilities to be provided, equipment and other standards to be maintained by the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic under sub-section (5) of section 18; (ix) the form in which a certificate of registration shall be issued under sub-section (1) of section 19; (x) the manner in which and the period after which a certificate of registration shall be renewed and the fee payable for such renewal under sub-section (3) of section 19; (xi) the manner in which an appeal may be preferred under section 21; (xii) the period up to which records, charts, etc., shall be preserved under sub-section (1) of section 29; (xiii) the manner in which the seizure of documents, records, objects, etc., shall be made and the manner in which seizure list shall be prepared and delivered to the person from whose custody such documents, records or objects were seized under sub-section (1) of section 30; (xiv) any other matter that is required to be, or may be, prescribed. 33. Power to make regulations.

33. Power to make regulations.The Board may, with the previous sanction of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act and the rules made there-under to provide for-- (a) the time and place of the meetings of the Board and the procedure to be followed for the transaction of business at such meetings and the number of members which shall form the quorum under sub-section (1) of section 9; (b) the manner in which a person may be temporarily associated with the Board under sub-section (1) of section 11; (c) the method of appointment, the conditions of service and the scales of pay and allowances of the officer and other employees of the Board appointed under section 12; (d) generally for the efficient conduct of the affairs of the Board. 15 34. Rules and regulations to be laid before Parliament. 34. Rules and regulations to be laid before Parliament. Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation. Secy. to the Govt. of India.

]]>Tue, 07 May 2013 12:47:24 +0000http://www.legalserviceindia.com/issues/topic1271-the-prenatal-diagnostic-techniques-regulation-and-prevention-of-misuse-act-1994-act-no-57-of-1994-new-posts.htmlhttp://www.legalserviceindia.com/issues/topic1270-the-married-womens-property-act-1874-new-posts.html
1. Short title.-This Act may be called the Married Women'sProperty Act, 1874.

Section 2. Extent and application2*[It extends to the whole of Indiaexcept the State of Jammu and Kashmir.] But nothing herein contained applies to any married woman who atthe time of her marriage professed the Hindu, Muhammadan, Buddhist,Sikh or Jaina religion, or whose husband, at the time of suchmarriage, professed any of those religions.

1. The relevant provision of the Indian Succession Act, 1925 (39 of1925) may now be referred to.2 Subs. by Act 61 of 1959, s. 2, for the former para. (w.e.f. 1-3-1960).Extended to and brought into force in Dadra and Nagar Heveli (w.e.f.1-7-65) by Reg. 6 of 1963, s.2 and Sch.I(with modification).----------------------------

2. And the 1*[State Government] may from time to time, by order, eitherretrospectively from the passing of this Act or prospectively, exemptfrom the operation of all or any of the provisions of this Act themembers of any race, sect or tribe, or part of a race, sect or tribe,to whom it may consider it impossible or inexpedient to apply suchprovisions.The 1[State Government] may also revoke any such order, but not sothat the revocation shall have any retrospective effect.All orders and revocations under this section shall be published inthe Official Gazette.2* * * * *

Section 4. Married women's earnings to be their separate property.arried women's earnings to be their separate property.-Thewages and earnings of any married woman acquired or gained by herafter the passing of this Act, in any employment, occupation or tradecarried on by her and not by her husband,and also any money or other property so acquired by her through theexercise of any literary, artistic or scientific skill,and all savings from and investments of such wages, earnings andproperty,shall be deemed to be her separate property, and her receipts aloneshall be good discharges for such wages, earnings and property. III.-INSURANCES BY WIVES AND HUSBANDS

Section 5. Married woman may effect policy of insurance.Married woman may effect policy of insurance.-Any married womanmay effect a policy of insurance on her own behalf and independentlyof her husband; and the same and

1 The original words " G. G. in C." have successively been amended byAct 38 of 1920, the A. O. 1937 and the A. O. 1950 to read as above.2 The last paragraph rep. by Act 39 of 1925, s. 392 and Sch. IX.3 Cf. the Married Women's Property Act, 1870 (33 and 34 Vict., c. 93),s. 1, now rep. by the Married Women's Property Act, 1882 (45 and 46Vict.,c. 75).4 Cf. the Married Women's Property Act, 1870 (33 and 34 Vict., c. 93),s. 10, para.

1.3all benefit thereof, if expressed on the face of it to be so effected,shall enure as her separate property, and the contract evidenced bysuch policy shall be as valid as if made with an unmarried woman.

Section 6. Insurance by husband for benefit of wife.1* 6. 2* [(1)] Insurance by husband for benefit of wife.-A policy ofinsurance effected by any married man on his own life, and expressedon the face of it to be for the benefit of his wife, or of his wifeand children, or any of them, shall enure and be deemed to be a trustfor the benefit of his wife, or of his wife and children, or any ofthem, according to the interest so expressed, and shall not, so longas any object of the trust remains, be subject to the control of thehusband, or to his creditors, or form part of his estate.When the sum secured by the policy becomes payable, it shall, unlessspecial trustees are duly appointed to receive and hold the same, bepaid to the Official Trustee of the 3*[State] in which the office atwhich the insurance was effected is situate, and shall be received andheld by him upon the trusts expressed in the policy, or such of themas are then existing.And in reference to such sum he shall stand in the same position inall respects as if he had been duly appointed trustee thereof by aHigh Court, under Act No. XVII of 1864 4*[to constitute an Office ofOfficial Trustee], section 10.Nothing herein contained shall operate to destroy or impede the rightof any creditor to be paid out of the proceeds of any policy ofassurance which may have been effected with intent to defraudcreditors.5*[(2) Notwithstanding anything contained in section 2, the provisionsof sub-section (1) shall apply in the case of any policy of insurancesuch as is referred to therein which is effected- (a) by any Hindu, Muhammadan,Sikh or Jain- (i) in Madras, after the thirty-first day of December, 1913, or 1 Cf. the Married Women's Property Act, 1870 (33 and 34 Vict., c. 93),s. 10, para. 2.2 S. 6 renumbered as sub-section (1) of that section by Act 13 of1923, s. 2.3 The word "Presidency" has been successively amended by the A. O.1937, the A. O. 1950 and the Adaptation of Laws (No. 2) Order, 1956,to read as above.4 The relevant provisions of the Official Trustees Act, 1913 (2 of1913) may be referred to.5 Subs. by Act 61 of 1959, s. 3 (w.e.f 1-3-1960), for sub-section (2),ins. by Act 13 of 1923, s. 2.

4 (ii) in any other territory to which this Act extended immediately before the commencement of the Married Women's Property (Extension) Act, 1959 (61 of 1959) after the first day of April, 1923, or (iii) in any territory to which this Act extends on and from the commencement of the Married Women's Property (Extension) Act, 1959 (61 of 1959) on or after such commencement; (b) by a Buddhist in any territory to which this Act extends, on or after the commencement of the Married Women's Property (Extension) Act, 1959: Provided that nothing herein contained shall affect any right or liability which has accrued or been incurred under any decree of a competent court passed- (i) before the first day of April, 1923, in any case to which sub-clause (i) or sub-clause (ii) of clause (a) applies ; or (ii) before the commencement of the Married Women's Property (Extension) Act, 1959 (61 of 1959), in any case to which sub-clause (iii) of clause (a) or clause (b) applies.] IV.-LEGAL PROCEEDINGS BY AND AGAINST MARRIED WOMEN

Section 7. Married women may take legal proceedings.1*17.Married women may take legal proceedings.-A married woman maymaintain a suit in her own name for the recovery of property of anydescription which, by force of the said Indian Succession Act, 1865(10 of 1865),*2 or of this Act, is her separate property; and sheshall have, in her own name, the same remedies, both civil andcriminal, against all persons, for the protection and security of suchproperty, as if she were unmarried, and she shall be liable to suchsuits, pro- cesses and orders in respect of such property as she wouldbe liable to if she were unmarried.

Section 8. Wife's liability for postnuptial debts.Wife's liability for postnuptial debts.-If a married woman(whether married before or after the first day of January, 1866)possesses separate property, and if any person enters into a contractwith her with reference to such property, or on the faith that herobligation arising out of such contract---------------------------------------------------------------------

2 See now the Indian Succession Act, 1925 (39 of 1925).--------------------------------------------------------------------- 5

will be satisfied out of her separate property, such person shall beentitled to sue her, and, to the extent of her separate property, torecover against her whatever he might have recovered in such suit hadshe been unmarried at the date of the contract and continued unmarriedat the execution of the decree: 1[Provided that nothing herein contained shall- (a) entitle such person to recover anything by attachment and sale or otherwise out of any property which has been transferred to a woman or for her benefit on condition that she shall have no power during her marriage to transfer or charge the same or her beneficial interest therein, or (b) affect the liability of a husband for debts contracted by his wife's agency expressed or implied.] V.-HUSBAND's LIABILITY FOR WIFE'S DEBTS

Section 9. Husband not liable for wife's antenuptial debts.2*29. Husband not liable for wife's antenuptial debts.-A husbandmarried after the thirty-first day of December, 1865 shall not byreason only of such marriage be liable to the debts of his wifecontracted before marriage, but the wife shall be liable to be suedfor, and shall, to the extent of her separate property, be liable tosatisfy such debts as if she had continued unmarried:Proviso.-Provided that nothing contained in this section shall 3***invalidate any contract into which a husband may, before the passingof this Act, have entered in consideration of his wife's antenuptialdebts.4[VI.-HUSBAND'S LIABILITY FOR WIFE's BREACH OF TRUST OR DEVASTATION

Section 10. Extent of husband's liability for wife's breach of trust or devastation.10.Extent of husband's liability for wife's breach of trust ordevastation.-Where a woman is a trustee, executrix or administratrix,either before or after marriage, her husband shall not, unless he actsor intermeddles in the trust or administration, be liable for anybreach of trust committed by her, or for any misapplication, loss ordamage to the estate of the deceased caused or made by her, or for anyloss to such estate arising from her neglect to get in any part of theproperty of the deceased.]

1 Subs. by Act 21 of 1929, s. 2, for the original proviso.2 Cf. the Married Women's Property Act, 1870 (33 and 34 Vict., c. 93), s. 12.3 The words "affect any suit instituted before the passing of this Act, nor" rep. by Act 12 of 1891, s. 2 and Sch. I.4 Ins. by Act 18 of 1927, s. 3.

The Indecent Representation of Women (Prohibition) Amendment Bill, 2012 was introduced in the Rajya Sabha on December 13, 2012 by the Minister of State (Independent), Women and Child Development, Smt Krishna Tirath. \

The Bill seeks to amend the Indecent Representation of Women (Prohibition) Act, 1986, which prohibits indecent representation of women through advertisements or publications, writings and paintings (primarily the print media).

The Bill seeks to widen the scope of the Act to cover new forms of communication such as the internet, satellite based communication, cable television etc.

The Bill prohibits the publication or distribution of any material, which contain indecent representation of women. This provision does not apply to material, which may be published in the interest of science, literature or art or for bona fide religious purpose or for sculptures in ancient monuments or temples.

The Bill adds new definitions of “indecent representation of women”, “electronic form” and “publish”. “Indecent representation of women” means the depiction of the figure or form of a woman in such a way that it has the effect of being indecent or derogatory or is likely to deprave or affect public morality. “Electronic form” means any information generated, sent or stored in media, magnetic and optical form (as defined in the Information Technology Act, 2000). “Publish” includes printing or distributing or broadcasting through audio visual media.

It amends definitions of “advertisement” and “distribution” to include all types of media (printed and electronic).

The Bill authorises any police officer of the rank of Inspector or above to investigate offences committed under this law.

The Bill enhances penalties for various offences. For representing women indecently, the penalty for the first offence was increased to imprisonment of three years from two years and a fine between Rs 50,000 and Rs 1 lakh from Rs 2,000. For a subsequent offence, the term of imprisonment shall be between two and seven years and fine between Rs 1 lakh and 5 lakh.

]]>Tue, 07 May 2013 11:11:43 +0000http://www.legalserviceindia.com/issues/topic1269-the-indecent-representation-of-women-prohibition-act-1986-new-posts.htmlhttp://www.legalserviceindia.com/issues/topic1268-the-dowry-prohibition-act-1961-new-posts.html
The Dowry Prohibition Act, 1961(Act No. 28 of 1961) with (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 1990

An Act to prohibit the giving or taking of dowry

Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows :

1. Short title, extent and commencement.---

(1) This Act may be called the Dowry Prohibition Act, 1961.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint.

2. Definition of "dowry".-in this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly---

(a) by one party to a marriage to the other party to the marriage; or

(b) by the persons of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before [or any time after the marriages] [in connection with the marriage of said parties but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

[5***] 2

Explanation II.-The expression "valuable security" has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).

State AmendmentHaryana.-Substitution of Sec. 2 of Parliament Act 28 of 1961.-For Sec. 2 of the Dowry Prohibition Act, 1961, the following section shall be substituted, namely :

"2. Definitions.-In this Act, unless the context otherwise requires- (i) "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person ;

at or before or after the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of person to whom the Muslim Personal Law (Shariat) applies.

Explanation I.-For the removal of doubts it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes, or other articles, shall not be deemed to be dowry within the meaning of the section, unless they are made as consideration for the marriage of the said parties. Explanation II.-The expression "valuable securities" has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).

(ii) "marriage expenses" shall include expenses incurred directly or indirectly at or before the marriage on (a)thakka, sagai, tikka, shagun and milni ceremonies; 3

(b) the gifts made by one party to a marriage to the other _party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof.

(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation .-For the removal of doubts, it is hereby declared that any gifts, made by a person other than those specified in sub-clause (b), at the time of the marriage to either party to the marriage shall not be deemed to be marriage expenses.

CommentsDowry-What amounts to.-It was contended, in the instant case, that the definition of the term "dowry' as given in Sec. 2 should include even a demand made by one party though the other party would not agree to pay that amount. It is impossible to think that such construction is possible. Section 2 has specifically defined the term "dowry' and that definition has to be borne in mind whenever the rest of the provisions of the Act are to be interpreted, particularly where those provisions contain the word "dowry". It is for this purpose that the Legislature has taken care to define the term "dowry". Thus it would not be ordinarily open to anybody to contend that the term "dowry" should be interpreted in a manner other than mentioned in Sec. 2.' The furnishing of a list of ornaments and other household articles, such as, refrigerator, furniture, electric appliances, etc., at the time of the settlement of the marriage amounts to demand of dowry within the meaning of Sec. 2 of the Dowry Prohibition Act, 1961. That being so, the High Court ought to have considered the appeal on rnerits and decided as to whether the respondents were guilty of offences punishable under Sec. 406 of the Indian Penal Code, 1860, read with Secs. 4 and 6 and Dowry Prohibition Act, 1961, by the wrongful retention to the articles given as marriage gifts, while driving out the appellant from the matrimonial house. The High Court would also ensure that all the articles to the wife at the time of the marriage, including the valuable gold ornaments, are restored to her.

Meaning of dowry defined.-Articles received as presents and gifts at the time of marriage cannot be termed as dowry. 4

Amount paid to the prospective son-in-law for purchase of property on the joint names of daughter and the would-be son-in-law whether amounts to dowry.- In Kunju Moideen v. Sayed Mohammed, on a fair reading of the plaint, it is evident that the amount that was paid, was for purchase of property in the name of the plaintiff's daughter and the would-be son-in-law. It cannot be said that the amount was paid or agreed to be paid at or before or after the marriage as consideration for the marriage of the parties. On that short ground the amounts sought to be recovered by the plaintiff is not dowry and it will not come within the inhibition of Dowry Prohibition Act. The learned Subordinate Judge was in error in holding that it will come within the definition of the Act and in non-suiting the plaintiff.

Dowry Prohibition Act, whether bars the traditional giving of presents- The Dowry Prohibition Act does not, in any way, bar the traditional giving of present at or about the time of the wedding which may be willing and affection are gifts by parents and close relations of the bride to her. Such presents or dowry given by the parents is, therefore, not at all within the definition of the aforesaid statute. Indeed this traditional giving of presents at or about the time of wedding is an accepted practice which finds mention in the oldest of Hindu scriptures and is continued today with a greater zeal.

Consequently, dowry as commonly understood is something different and alien to the peculiar definition thereof in the Dowry Prohibition Act. A voluntary and affectionate giving of dowry and traditional presents would thus be plainly out of the ambit of the particular definition under the Act and once that is so the rest of the provisions thereof would be equally inapplicable. Consequently the argument that the applicability of the special provisions of the Dowry Prohibition Act would exclude the general provisions of the Indian Penal Code would not even arise and in any case has no validity.

Offences under the Dowry Prohibitin Act and under Sec. 406, I.P.C., whether can stand together on the same set on facts.- A plain reading of the definition of dowry would show that it means any property given directly as a consideration for the marriage of the parties. Now once that is so, dowry of this kind is in fact a quid pro quo for the marriage itself. Inevitably it would follow that whatsoever is given consideration for the marriage itself cannot possibly be deemed in the eye of law as an entrustment or passing of dominion over property. To recall the familiar analogy of the law of contract, the consideration is the price for the promise and therefore, such property cannot be deemed even remotely to have been entrusted or dominion passed over it to the other. The necessary result, therefore, is that the same set of facts allegedly constituting an offence under the Dowry Prohibition Act cannot possibly come within the ambit of Sec. 106, I.P.C. This would be plainly a consideration in terms. One offence is tested on property forming the consideration for the marriage as such, whilst, the other visualises the entrustment and passing of dominion over property individually owned. The 5 offences under the Dowry Prohibition Act cannot under Sec. 406, I.P.C., thus cannot stand together on the same set of facts.

Interpretation of section.-The Court can merely interpret the section - it cannot rewrite, re-cast or re-design the section. 3. Penalty for giving or taking dowry.- [(1)] If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable [with imprisonment for a term which shall not be less than [five years], and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more : Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than [five years]. [(2)] Nothing in sub-section (1) shall apply to or, in relation to,- (a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf): Provided that such presents are entered in list maintained in accordance with rule made under this Act ; (b) presents which are given at the time of marriage to the bridegroom (without any demand having been made in that behalf) : Provided that such presents are entered in a list maintained in accordance with the rules made under this Act : Provided further that where such presents are made by or on behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf, such presents are given.] State Amendments Bihar.-Substitution of new section for Sec. 3 of Act 28 of 1961.-For Sec. 3 of the Dowry Prohibition Act, 1961 (Act 28 of 1961), the following section shall be substituted, namely 6"3. Penalty for giving or taking dowry. -If any person after the commencement of this Act, gives or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees. Haryana.-Substitution of Sec. 3 of Parliament Act 28 of 1961.-For Sec. 3 of the principal Act, the following section shall be substituted "3. Bar of certain acts.-No person shall- (a) give, or take or abet the giving or taking of dowry; (b)'demand directly or indirectly, from the parents or guardians of a bride or bridegroom, as the case may be, any dowry ; (c) incur marriage expenses the aggregate value whereof exceeds five thousand rupees; (d) display any gifts made at or before the marriage in the form of cash, ornaments, clothes or other articles (e) take or carry in excess of- (i) twenty-five members of the marriage party ; and (ii) eleven members of the band; (f) deny conjugal right to his wife on the ground that dowry has not been given or the dowry given is insufficient." Himachal Pradesh.-Substitution of Sec. 3.-For Sec. 3 of the Dowry Prohibition Act, 1961, in its application to the State of Himachal Pradesh the following section shall be substituted, namely : 7"3. Penalty for giving or taking of dowry.-If any person gives or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand ruppes. Punjab.-Amendment of Sec. 33 of Central Act 28 of 1961.-In Sec. 3 of the Dowry Prohibition Act, 1961, in its application to the State of Punjab (hereinafter referred to as the principal Act), for the words "six months or with fine which may extend to five thousand rupees", the words "one year and fine which may extend to five thousand rupees" shall be substituted. West Bengal.-Amendment of Sec. 3 of Act 28 of 1961.-In Sec. 3 of the said Act, for the words "which may extend, to five thousand rupees, the words "shall not be less than two thousand rupees, but may extend to ten thousand rupees" shall be substituted. CommentsProviso.-A proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. Shall.-"Shall" cannot be interpreted as "may". [4]. Penalty for demanding dowry.-If any person demands directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which may extend to ten thousand rupees : Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.") State AmendmentsBihar.-Substitution of new section for Sec. 4 of Act 28 of 1961.-For Sec. .4 of said Act the following section shall be substituted, namely : 8"4. Penalty for demanding dowry.-If any person after the commencement of this Act, demands directly from the parents, or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees : Provided that no Court shall take cognizance of any offence under this section except with the previous sanction of the State Government or of such officer as the State Government may, by general order, specify in this behalf." Haryana.-Substitution of Sec. 4 of Parliament Act 28 of 1961.-For Sec. 4 of the principal Act, the following section shall be substituted : "4. Penalty--(l) If any person contravenes any of the provisions of See. 3, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees. (2) The Court trying an offence under C1. (f) of Sec. 3 relating to conjugal right may, at any stage of the proceedings, on the execution of a bond by the husband undertaking not to demand dowry and to allow conjugal rights to the wife, drop the proceedings. (3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied on an application made by the wife; in this behalf, that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond and thereupon the Court shall proceed with the case from the stage at which it was dropped; Provided that no application under this sub-section shall be entered if it is made after the expiry of a period of three years from the date on which proceedings were dropped. (4) The Court may direct that the fine, if any, imposed for the contravention of Cl. (f) of Sec. 3 or such portion thereof, as the Court may deem proper, shall be paid to the wife." Himachal Pradesh.-Substitution of Sec. 4.-For Sec. 4 of the principal Act, the following section shall be substituted, namely : 9"4. Penalty for demanding dowry.-If any person demands, directly or indirectly, from the parents or guardian of a bride or bridegroom or from any other person, as the case may be, any dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees." Insertion of Secs. 4-A and 4-B.-After Sec. 4 of the principal Act, the following sectionsshall be inserted, namely : "4-A. Bar of certain acts.-Any person who- (i) displays any presents made at the time of marriage in the form of cash, ornaments, clothes or other articles, or (ii) gives in the form of shagun at the time of thakka betrothal or tika anything the value of which exceeds eleven rupees, or (iii) gives to the parents or any other relation of a party to the marriage anything on the occasion of many or any other ceremony performed in relation to betrothal or marriage : shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both. 4-B. Penalty for depriving any party of any rights and privileges of marriage.--(1) If after the marriage, any party to the marriage with or without assistance of any other person deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non- payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees. (2) The provisions of this section shall be in addition to and not in derogation of, any provision on the subject contained in any other law for the time being in f orce. Punjab.-Amendrnent of Sec. 4 of Central Act 28 of 1961.-In Sec. 4 of the principal Act,- (a) for the words "six months, or with fine which may extend to five thousand rupees", the words "one year and fine which may extend to five thousand rupees" shall be 10substituted; and (b) the proviso shall be omitted. Insertion of new Secs. 4-A and 4-B in Central Act 28 of 1961.-After Sec. 4 of the principal Act, the following sections shall be inserted namely : "4-A. Bar of certain acts.- Any person who- (i) displays any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles ; or (ii) takes in a marriage party more than twenty-five persons exclusive of minors and the members of the band ; or (iii) gives in the form of shogun at the time of thaka, betrothal or marriage, anything the value of which exceeds eleven rupees; or (iv) gives to the parents or any 'other relation of a party to the marriage anything on the occasion of many or any other ceremony performed in relation to betrothal or marriage ; or (v) serves to the marriage party more than two principal meals shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to, five thousand rupees or with both. Explanation.-In this section the expression 'principal meal' mean lunch or dinner. "4-B. Penalty for depriving any party of rights and privileges of marriage.- Any party to the marriage who, after the marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for nonpayment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year and fine which may extend to five thousand rupees." West Bengal.-Amendment of Sec. 4.- In Sec. 4 of the said Act,- 11(a) after the words "bride or bridegroom", the words "or from any other person" shall be inserted ; (b) for the words "which may extend to six months, or with fine which may extend to five thousand rupees", the words "which shall not be less than three months, but may extend to three years or with fine which shall not be less than two thousand rupees, but may extend to. ten thousand rupees", shall be substituted ; (c) for the proviso, the following provisions shall be substituted, namely "Provided that no Court shall take cognizance of any offence under this section except on a complaint made by the aggrieved party or his parents or by any other person with the previous sanction of the authority specified by the State Government in this behalf : Provided further that no such previous sanction shall be necessary for taking cognizance on a complaint made by such organization for social welfare with a minimum standing of five years as may be specified by the State Government by notification in the official Gazette or by any person duly authorised by such Organisation." Insertion of new Sec. 4-A.- After Sec. 4 of the said Act, the following section shall be inserted, namely : "4-A. Penalty for depriving any party of the rights and privileges of marriage-- (1) If after the marriage any party to the marriage with or without assistance of his parents or guardiam deprives the other party of the rights and previlages of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than two thousand rupees, but may extended to five thousand rupees, or with both. (2) The provisions of this section shall be in addition to, and not in derogation of any provisions on the subject contained in any other law for the time being in forces. 12CommentsThere must be a demand of dowry.--it is clear that the bringing a case under Sec. 4, there must be a demand of dowry and dowry means any property agreed to be given. consequently, the demand must be of a property agreed to be given as consideration for the marriage of the parties. Thus reading Sec.4 with the help of the definition of the term "dowry" in Sect.2 would, therefore, show that a demand so as to bring the case under sec. 4 must be a property agreed to be given as consideration for the marriage. In the present case, the complainant does not allege that respondent No.1 has agreed to pay any amount and that the petititioners demanded that agreed amount. The larned Magistrate has committed an error in issuing a process against the petitioners. Whether Sec. 498-A, I.P.C.., is distinguishable from Sec. 4, Dowry Prohibition Act,-Section 498-A, I.P.C. does not create any situation for double jeopardy. That provision is distinguishable from Sec.4, Dowry Prohibition Act, becuase in the letter mere demand of dowry is punishable and existence of element of cruelty is not necessary. Section 498-A, I.P.C. deals with aggravated from of the offence. It inter alia, punishes such demands of property of valuable security from the wife or her relative as are coupled with curelty, to her. Hence, a person can be prosecuted in respect of both the offences punishable under Sec. 4 of the Dowry Prohibition Act, and Sec.498-A, I.P.C. Prima facie case.-Section 4 of the Act pertains only to dowry demands directly or indirectly from the parents or guardian of the bride or bridegroom whereas Sec. 2 defines dowry as property or valuable security given or agreed to be given by persons mentioned therein as consideration for the marriage. Though, there does appear to be some inconsistency between the provision of Sect,. 2 and 4 of the Act, in the facts of the present case it does not appear to be relevant, as the complaint clearly indicates that property or valuable security was demanded by the petitioners and father of the bride did comply partially with these demands. As stated in the complaint demands wore made by the petitioner with regard to money and clothes on 25th January, 1980. A list setting out the details was made over. Father of the bride supplied the clothes, etc. as also, a part of the money on the date of the engagement, i.e. 26th January, 1980. Subsequently, on 27th January, 1980, further demands were made for television, refrigerator, double-bed sofa, tv., twoin-one, utensils, clothes, etc. to be given in consideration for the rnarriage. Bride's father also tried to meet these denands, so obviously, there was sense agreement in the matter. But, as the dowry domnded has been only partialy provided, the petitioners continued to make demands, own subsequent to the marriage, on 4th March, 1980. In the circumstances, it cannot be said that no prima facie case is made out. 13Meanings of dowry defined--Articies received as.presents and gifts at the time of marriage cannot be termed as dowry. Dowry demand amounts to cruelty.-The demand for dowry is prohibited enough. That, amounts to cruelty entitling the wife to get a decree for dissolution of marriage. [4-A, Ban on advertisement- if any person - (a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or of any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative, (b) prints or publishes or circulates any advertisement referred to Cl. (a), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees : Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months. 5. Agreement for giving or taking dowry to be void.-Any agreement for the giving or taking of dowry shall be void. 6. Dowry to be for the benefit of the wife or heirs.---(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman- (a) if the dowry was received before marriage, within [three months] after the date of marriage ; or (b) if the dowry was received at the time of or after the marriage within [three months] after the date of its receipt ; or (c) if the dowry was received when the woman was a minor, with [three months] after she has attained the age of eighteen years. 14and pending such transfer, shall hold it in trust for the benefit of the woman. [(2)] If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor [or as required by sub-section (3)] he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend two 'years or with fine [which shall not be less than five -thousand rupees, but which may extend to ten thousand rupees] or with both.] (3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being : [Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall- (a) if she has no children, be transferred to her parents, or (b) if she has children, be transferred to such children and pending such transfer, be held in trust for such children.] [(3-A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section(1) [or sub-section (3)] has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, [her heirs, parents or children], the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, (her heirs, parents or children] within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman, as the case may be, [her heirs, parents or children]. (4) Nothing contained in this section shall affect provisions of Sec.3 or Sec.4 State AmendmentsHaryana.-Amendment of Sec. 6 of Parliament Act'28 of 1961.-In sub- section (2) of Sec. 6 of the principal Act, for the words "or with fine which may extend to five thousand 15rupees, or with both", the words "and with fine which may extend to five thousand rupees" shall be substituted. Orissa.-Amendment of Sec. 6 of Parliament Act 28 of 1961.-In its application to the State of Orissa, Secs. 6-A and 6-B have been inserted as under : "6-A. Penalty for denial of conjugal right by the husband.---(l) If any person denies conjugal rights to his wife on the ground that dowry has not been given or on the ground that the dowry given is insufficient, he shall be punishable with imprisonment which may extend to one year, or with fine which may extend to ten thousand rupees or with both. (2) The Court trying an offence under this section may, at any stage of the proceedings, on the execution of a bond by the husband undertaking not to realise the dowry or any portion thereof as the case may be, and to allow conjugal rights to the wife, drop the proceedings. (3) Any proceedings dropped under sub-section (2) shall revive if the Court is satisfied, on an application made in that behalf by the wife that the husband has failed to carry out the undertaking or has otherwise acted contrary to the terms of the bond, and thereupon the Court shall proceed with the case from stage at which it was dropped : Provided that no application under this sub-section shall be entertained if it is made after the expiry of three years from the date on which the proceedings were dropped. (4) The Court may direct that the fine, if any, imposed under this section or such portion thereof as the Court deems proper shall be paid to the wife as compensation. 6-B. Maintenance to be paid by husband on his convection-(1) On conviction of a person for an offence under Sec. 6-A the Court trying the offence may, on a claim made by his wife in that behalf within two months from the date of the order of conviction, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees, as the Court deems proper : Provided that no such order shall be made without giving the parties concerned a reasonable opportunity of being heard. 16(2) In determining the monthly allowance under this section regard shall be had to- (a) the position and status of the parties; (b) the reasonable wants of the wife (c) the value of the wife's property and any income derived from such property, or from the wife's own earnings or from any other source ; and (d) the amount of compensation awarded under See. 6-A. (3) The maintenance allowance so ordered shall be a charge on the property, if any, of the husband, whether acquired before or after the date of the (4) Where a complaint has been filed by the wife for an offence under Sec. 6-A, the husband shall not transfer any of his assets till- (a) where no claim for maintenance has been preferred under this section, the date of expiry of the period of limitation specified in sub-section (1) for filing such claim; and (b) where such claim is preferred, the disposal of the claim. (5) Notwithstanding anything contained in any other law, the wife may enforce any claim for maintenance against any property transferred by the husband in contravention of the provisions of sub-section (4) as if such transfer were null and void. (6) The provisions contained in sub-section (3) of Sec. 125 of the Code of Criminal Procedure, 1973, so far as may be, apply to the recovery of the maintenance allowance ordered under this section". Comments Wife-Expression interpreted.-Tbte expression wife" should be interpreted to mean only a legally wedded wife. The expression must be given the meaning in which it is understood in law applicable to the parties: 17Hasty disposal of case not approved.-The appellant filed a complaint petition against the respondents for having committed offences under Secs. 4 and 6-A of the Act. After enquiry under Sec. 202 of the Code of Criminal Procedure, the learned Judicial Magistrate took cognizance of an offence under- See. 6-A of the Act against the respondents and directed issuance of summons. After appearance of the respondents on the date fixed and the particulars of charge under Sec. 6-A of the Act having been explained to them the case was posted to for hearing. On that day the respondents were represented but the appellant was not present in Court. Hazira of witnesses was also not filed. The learned Judicial Magistrate, therefore' recorded an order of acquittal under Sec. 256, Cr. P.C. When the complainant is absent at the stage of Sec.256, Cr. P.C., the Court can proceed in either of the three ways : (i) it may acquit the accused or (ii) adjourn the case, or (iii) proceed to hear the case under the proviso if the complainant is represented by an advocate of the complainant conducting the prosecution or if the personal attendance of the complainant is not considered necessary. In order to decide whether the presence of the complainant is necessary, the Court should act judicially and not capriciously. A duty has been cast on the Court to consider whether the personal attendance of the complainant is or is not necessary. In view of the discretionary power vested in the Court, heavy responsibility rests on it in deciding as to whether to adjourn the case or to record an order of acquittal. The discretion vested in the Court should be exercised carefully and not hastily. An order of acquittal under Sec. 256 of the Code would bar a fresh trial and therefore, such an order is of immense significance. The order should show that the wide descretion vested in the Court had properly been exercised. [7. Cognizance of offences.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act ; (b) no Court shall take cognizance of an offence under this Act except upon- (i) its own knowledge or a police report of the facts which constitute such offence, or (ii) a complaint by the person aggrieved by offence or a parent or other relative of such person, or by any recognized welfare institution or Organisation; 18(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any peson convicted of any offence under this Act. Explanation.-For the purposes of this sub-section, "recognized welfare institution or Organisation" means a social welfare institution or Organisation recognized in this behalf by the Central or State Government. (2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.] [(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.] State Amendments Bihar.-Substitution of new section for Sec. 7 of Act 28 of 1961.-For Sec. 7 of the said Act, the following section shall be substituted, namely : "7. Trial of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974), no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act." Haryana.-Substitution of Sec. 7 of Parliament Act 28 of 1961.-For Sec. 7 of the principal Act, the following section shall be substituted, namely : "7. Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act ; (b) no Court shall take cognizance of any such offence except on a - complaint made by any patty to the marriage or her father, mother or brother or a gazetted officer specially authorised by the State Government in this behalf, within a period of one year from the 19date of the marriage ; (c) no Court shall take cognizance of any such offence except with the previous sanction of the District Magistrate or of such officer as the State Government may, by general or special order, specify in this behalf; (d) no enquiry shall be got made through any police officer below the rank of a Deputy Superintendent of Police ; (e) no woman shall be called to a police station for the purpose of an enquiry regarding any offence under this Act. Himachal Pradesh.-Substitution of Sec. 7.-For Sec. 7 of the principal Act, the following section shall be substituted : 7. Trial of offences.-3[** * ] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no Court inferior to that of a Judicial Magistrate of the first class shall try offence under this Act. 3[***] No Court shall take cognizance of any offence under this Act, except that of offence under Sec. 4-B, except on a police report or complaint made within one year of the marriage. Amendment of Sec. 7.-In Sec. 7 of the Dowry Prohibition Act, 1961 (28 of 1961) (hereinafter referred to as the principal Act), the brackets and figure "(1)" at the beginning of sub-section (1) and also sub-section (2) shall be omitted. Punjab.-Substitution of Sec. 7 of Central Act 28 of 1961.-For Sec. 7 of the principal Act, the following section shall be substituted, namely : "7. Cognizance of offences.-Notwithstandirig anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (1) No Court inferior to that of a Judicial Magistrate of the first class shall try any offence under this Act. (2) No Court shall take cognizance of any offence punishable under Secs. 3, 4, and 4-B, except upon a complaint made within one year from the date of the offence by some 20person aggrieved by the offence Provided that- (a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf (b) where the person aggrieved by an offence is the wife, complaint may be made on her behalf by her father, mother, brother, sister, or by her father's or mother's, brother's or sister ; and

]]>Tue, 07 May 2013 10:59:59 +0000http://www.legalserviceindia.com/issues/topic1268-the-dowry-prohibition-act-1961-new-posts.htmlhttp://www.legalserviceindia.com/issues/topic1267-the-immoral-traffic-prevention-act-1956-new-posts.html
The Immoral Traffic (Prevention) Act, 1956An Act to provide in pursuance of the International Convention signed at New York on the 9th day of May, 1950, for the prevention of immoral traffic.

Be it enacted by Parliament in the Seventh Year of the Republic of India as follows:

1. Short title, extent and commencement.—(1) This Act may be called The Immoral Traffic (Prevention) Act, 1956.

(2) It extends to the whole of India.

(3) This section shall come into force at once; and the remaining provisions of this come into force on such date as the Central Government may, by notification in the official Gazette, appoint.

2. Definitions.—In this Act. unless the context otherwise requires— (a) “brothel“ includes any house, room, conveyance or place, or any portion of any house, room, conveyance or place, which is used for purposes of sexual exploitation or abuse for the gain of another person or for the mutual gain of two or more prostitutes; (aa) “child“ means a person who has not completed the age of sixteen years; (b) “corrective institution“ means an institution, by whatever name called (being an institution established or licensed as such under Section 21), in which persons, who are in need of correction, may be detained under this Act, and includes a shelter where under trials may be kept in pursuance of this Act;

(c) “magistrate“ means a Magistrate specified in the second column of the Schedule as being competent to exercise the powers conferred by the section in which the expression occurs and which is specified in the first column of the Schedule; (ca) “major“ means a person who has completed the age of eighteen years; (cb) “minor“ means a person who has completed the age of sixteen years but has not completed the age of eighteen years; (d) “prescribed“ means prescribed by rules made under this Act; (e) [1] [ * * * * * * ]. (f) “prostitution“ means the sexual exploitation or abuse of persons for commercial purposes, and the expression “prostitute” shall be construed accordingly; 2(g) “protective home“ means an institution, by whatever name called (being an institution established or licensed as such under Section 21), in which persons who are in need of care and protection, may be kept under this Act and where appropriate technically qualified persons, equipments and other facilities have been provided but does not include,— (i) a shelter where under trials may be kept in pursuance of this Act, or (ii) a corrective institution; (h) “public place“ means any place intended for use by, or accessible to, the publicand includes any public conveyance; (i) “special police officer” means a police officer appointed by or on behalf of the State Government to be in charge of police duties within a specified area for the purpose of this Act; (j) “trafficking police officer“ means a police officer appointed by the Central Government under sub-section (4) of Section 13.

Comments Prostitution—Police raid—Nine girls recovered—Enquiry conducted under Sec. 17—Medical examination report stating to have had sexual intercourse within a week before examination—Detention order—Appeal—No evidence as to petitioners living in or carrying on prostitution brothel at time of raid—No evidence to prove that petitioners were seducing any person for the purpose of prostitution—Profession of accused stated to be dancing & singing—Held :—Sexual intercourse by itself is not an offence—Prostitution by itself is not an offence—Petition allowed. Kumari Sangeeta v. State and another. 1996 Cr.R. 129 (Delhi)

2-A. Rule of construction regarding enactments not extending to Jammu and Kashmir .—Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir shall in relation to that State, be construed as a reference to the corresponding law, if any, in force in thatState.

3. Punishment for keeping a brothel or allowing premises to be used as a brothel.— (1) Any person who keeps or manages, or acts or assists in the keeping or management of, a brothel, shall be punishable on first conviction with rigorous imprisonment for a term of not less than one year and not more than three years and also with fine which may extend to two thousand rupees and in the event of a second or subsequent to conviction with rigorous imprisonment for a term of not less than two years and not more than five years and also with fine which may extend to two thousand rupees.

(2) a any person who,— (a) being the tenant, lessee, occupier or person in charge of any premises, uses, or knowingly allows any other person to use, such premises or any part thereof as a brothel, or 3(b) being the owner, lessor or landlord of any premises or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof is intended to be used as a brothel, or is wilfully a party to the use of such premises or any part thereof as a brothel, shall be punishable on first conviction with imprisonment for a term which may extend to two years and with fine which fine which may extend to two thousand rupees and in the event of a second or subsequent conviction, with rigorous imprisonment for a term which may extend to five years and also with fine. (2-A) For the purposes of sub-section (2), it shall be presumed, until the contrary is proved, that any person referred to in clause (a) or clause (b) of that sub-section, is knowingly allowing the premises or any part thereof to be used as a brothel or, as the case may be, has knowledge that the premises or any part thereof are being used as a brothel, if,— (a) a report is published in a newspaper having circulation in the area in which such person resides to the effect that the premises or any part thereof have been found to be used for prostitution as a result of a search made under this Act; or (b) a copy of the list of all things found during the search referred to in clause (a) is given to such person.

(3) Notwithstanding any thing contained in any other law for the time being in force, on conviction of any person referred to in clause (a) or clause (d) of sub-section (2) of any offence under that sub-section in respect of any premises or any part thereof, any lease or agreement under which such premises have been leased out or held or occupied at the time of the commission of the offence, shall become void and inoperative with effect from the date of the said conviction.

4. Punishment for living on the earnings of prostitution .—(1) Any person over the age of eighteen years who knowingly lives, wholly or in part, on the earnings of the prostitution of any other person shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both, and where such earnings relate to the prostitution of a child or a minor, shall be punishable with imprisonment for a term of not less than seven years and not more than ten years. (2) Where any person over the age of eighteen years is proved,— (a) to be living with, or to be habitually in the company of, a prostitute; or (b) to have exercised control, direction or influence over the movements of a prostitute in such a manner as to show that such person is aiding abetting or compelling her prostitution; or (c) to be acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the contraryis proved, that such person is knowingly living on the earnings of prostitution of another person within the meaning of sub-section (1). 5. Procuring, inducing or taking person for the sake of prostitution.—(1) Any person who— 4(a) procures or attempts to procure a person whether with or without his/her consent, for the purpose of prostitution; or

(b) induces a person to go from any place, with the intent that he/she may for the purpose of prostitution become the inmate of, or frequent, a brothel; or

(c) takes or attempts to take a person or causes a person to be taken, from one place to another with a view to his/her carrying on, or being brought up to carry on prostitution ; or

(d) causes or induces a person to carry on prostitution;

shall be punishable on conviction with rigorous imprisonment for a term of not less than three years and not more than seven years and also with fine which may extend to two thousand rupees, and if any offence under this sub-section is committed against the will of any person, the punishment of imprisonment for a term of seven years shall extend to imprisonment for a term of fourteen years:

Provided that if the person in respect of whom an offence committed under this sub-section,— (i) is a child, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years but may extend to life; and (ii) is a minor, the punishment provided under this sub-section shall extend to rigorous imprisonment for a term of not less than seven years and not more than fourteen years. [2] (2) [ **** ** ]

(3) An offence under this section shall be triable,—

(a) in the place from which a person is procured, induced to go, taken or caused to be taken or from which an attempt to procure or taken such persons made; or

(b) in the place to which she may have gone as a result of the inducement or to which he/she is taken or caused to be taken or an attempt to take him/her is made.

6. Detaining a person in premises where prostitution is carried on.—(1) Any person who detains any other person, whether with or without his consent,—

(a) in any brothel, or

(b) in or upon any premises with intent that such person may have sexual intercourse with a person who is not the spouse of such person, shall be punishable on conviction, with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine: 5Provided that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than seven years. (2) Where any person is found with a child in a brothel, it shall be presumed, unless the contrary is proved, that he has committed an offence under sub-section (1).

(2-A) Where a child or minor found in a brothel, is, on medical examination, detected to have been sexually abused, it shall be presumed unless the contrary is proved, that the child or minor has been detained for purposes of prostitution or, as the case may be, has been sexually exploited for commercial purposes.

(3) A person shall be presumed to detain a person in a brothel or in upon any premises for the purpose of sexual intercourse with a man other than her lawful husband, if such person, with intent to compel or induce her to remain there,—

(a) with holds from her any jewellery, wearing apparel, money or other property belonging to her, or

(b) threatens her with legal proceedings if she takes away with her any jewellery, wearing apparel, money or other property lent or supplied to her by or by the direction of such person.

(4) Notwithstanding any law to the contrary, no suit, prosecution or other legal proceeding shall lie against such woman or girl at the instance of the person by whom she has been detained, for the recovery of any jewellery, wearing apparel or other property alleged to have been lent or supplied to or for such woman or girl or to have been pledged by such woman or girl or for the recovery of any money alleged to be payable by such woman or girl.

7. Prostitution in or in the vicinity of public place.—(1) Any person who carries on prostituion and the person with whom such prostitution is carried on, in any premises:

(a) which are within the area or areas, notified under sub-section (3), or

(b) which are within a distance of two hundred meters of any place of public religious worship, educational institution, hotel, hospital, nursing home or such other public place of any kind as may be notified in this behalf by the Commissioner of Police or Magistrate in the manner prescribed, shall be punishable with imprisonment for a term which may extend to three months.

(1-A) Where an offence committed under sub-section (1) is in respect of a child or minor, the person committing the offence shall be punishable with imprisonment of either description for a term which not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. (2) Any person who: 6

(a) being the keeper of any public place knowingly permits prostitutes for purposes of their trade to resort to or remain in such place; or

(b) being the tenant, lessee, occupier or person in charge of any premises referred to in subsection (1) knowingly permits the same or any part thereof to be used for prostitution; or

(c) being the owner, lessor or landlord of any premises referred to in sub-section (1), or the agent of such owner, lessor or landlord, lets the same or any part thereof with the knowledge that the same or any part thereof may be used for prostitution, or is wilfully a party to such use.

shall be punishable on first conviction with imprisonment for a term which may extend to three months, or with fine which may extend to two hundred rupees, or with both, and in the event of a second or subsequent conviction with imprisonment for a term which may extend to six months and also with fine, which may extend to two hundred rupees, and if the public place or premises happen to be a hotel, the license for carrying on the business of such hotel under any law for the time being in force shall also be liable to be suspended for a period of not less than three months but which may extend to one year:

Provided that if an offence committed under this sub-section is in respect of a child or minor in a hotel, such license shall also be liable to be cancelled.

Explanation.—For the purposes of this sub-section, “hotel” shall have the meaning as in clause (6) of Section 2 of the Hotel-Receipts Tax Act, 1980 (54 of 1980).

(3) The State Government may, having regard to the kinds of persons frequenting any area or areas in the State, the nature and the density of population therein and other relevant considerations, by notification in the official Gazette, direct that the prostitution shall not be carried on in such area or areas as may be specified in the notification.

(4) Where the notification is issued under Sub-section (3) in respect of any area or areas, the State Government shall define the limits of such area or areas in the notification with reasonable certainty. (5) No such notification shall be issued so as to have effect from a date earlier than the expiry of a period of ninety days after the date on which it is issued.

8. Seducing or soliciting for purpose of prostitution.—Whoever, in any public place or within sight of, and in such manner as to be seen or heard from, any public place, whether from within any building or house or not:

(a) by words, gestures, willful exposure of her person (whether by sitting by a window or on the balcony of a building or house or in any other way), or otherwise tempts or endeavour to tempt,

or attracts or endeavour to attract the attention of, any person for the purpose of prostitution; or 7

(b) solicits or molests any person, or loiters or acts in such manner as to cause obstruction or annoyance to persons residing nearby or passing by such public place or to offend against public decency, for the purpose of prostitution,

shall be punishable on first conviction with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, and in the event of a second or subsequent conviction, with imprisonment for a term which may extend to one year, and also with fine which may extend to five hundred rupees:

Provided that where an offence under this Section is committed by a man he shall be punishable with imprisonment for a period of not less than seven days but which may extend to three months.

9. Seduction of a person in custody.—Any person who having the custody, charge or care of or in a position of authority over any person causes or aids or abets the seduction for prostitution of that shall be punishable on conviction with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years. [3] [(2) ******* ] [4] [10. ******* ]

10-A. Detention in a corrective institution.—(1) Where,—

(a) a female offender is found guilty of an offence under Section 7 or Section 8, and

(b) the character, state of health and mental condition of the offender and the other circumstances of the case are such that it is expedient that she should be subject to detention for such term and such instruction and discipline as are conducive to her correction,

it shall be lawful for the court to pass, in lieu of a sentence of imprisonment, an order for detention in a corrective institution for such term, not being less than two years and not being more than five years, as the court thinks fit:

Provided that before passing such an order,— (i) the court shall give an opportunity to the offender to be heard and shall also consider any representation which the offender may make to the court as to the suitability of the case for treatment in such an institution, as also the report of the Probation Officer appointed under the Probation of Offender Act, 1958; and 8

(ii) the court shall record that it is satisfied that the character, state of health and mental condition of the offender and the other circumstances of the case are such that the offender is likely to benefit by such instruction and discipline as aforesaid.

(2) Subject to the provisions of sub-section (3), the provisions of the Code of Criminal Procedure, 1973, relating to appeal, reference and revision, and of the Limitation Act, 1963 as to the period within which an appeal shall be filed, shall apply in relation to an order of detention under sub-section (1) as if the order had been a sentence of imprisonment for the same period as the period for which the detention was ordered.

(3) Subject to such rules as may be made in this behalf, the State Government or authority authorised in this behalf may, at any time after the expiration of six months from the date of an order for detention in a corrective institution, if it is satisfied that there is a reasonable probability that the offender will lead a useful and industrious life, discharge her from such an institution, without condition or with such conditions as may be considered fit, and grant her a written licence in such form as may be prescribed.

(4) The conditions on which an order is discharged under sub-section (3), may include requirements relating to residence of the offender and supervision over the offenders activities and movements. 11. Notification of address of previously convicted offenders.—(1) When any person having been convicted—

(a) by a court in India of an offence punishable under this Act or punishable under Section 363, Section 365, Section 366, Section 366-A, Section 366-B, Section 367, Section 368, Section 370, Section 371, Section 372 or Section 373 of the Indian Penal Code (45 of 1860), with imprisonment for a term of two years or up wards; or

(b) by a court or tribunal in any other country of an offence which would, if committed in India, have been punishable under this Act, or under any of the aforesaid sections with imprisonment for a like term,

is within a period of five years after release from prison, again convicted of any offence punishable under this Act or under any of those section with, imprisonment for a term of two years or upwards by a court, such court may, if it thinks fit, at the time of passing the sentence of imprisonment on such person, also order that his residence, and any change of, or absence from, such residence, after release, be notified according to rules made under Section 23 for a period not exceeding five years from the date of expiration of that sentence.

(2) If such conviction is set aside on appeal or otherwise, such order shall become void.

(3) An order under this section may also be made by an Appellate Court or by the High Court when exercising its powers of revision. 9

(4) Any person charged with a breach of any rule referred to in sub-section (1) may be tried by a Magistrate of competent jurisdiction in the District in which the place last notified as his residence is situated.

[5] [12.****** ]

13. Special police officer and advisory body .—(1) There shall be for each area to be specified by the State Government in this behalf a special police officer appointed by or on behalf of that government for dealing with offences under this Act in that area.

(2) The special police officer shall not be below the rank of an Inspector of Police.

(2-A) The District Magistrate may, if he considers it necessary or expedient so to do, confer upon any retired police or military officer all or any of the powers conferred by or under this Act on a special police officer, with respect to particular cases or classes of cases or to cases generally: Provided that no such power shall be conferred on,—

(a) a retired police officer unless such officer, at the time of his retirement, was holding a post not below the rank of an inspector; (b) a retired military officer unless such officer, at the time of his retirement, was holding a post not below the rank of a commissioned officer. (3) For the efficient discharge of his functions in relation to offences under this Act,— (a) the special police officer of an area shall be assisted by such number of subordinate police officers (including women police officers wherever practicable) as the State Government may think fit; and (b) the State Government may associate with the special police officer a non-official advisory body consisting of not more than five leading social welfare workers of that area (including women social welfare workers wherever practicable) to advise him on questions of general importance regarding the working of this Act.

(4) The Central Government may, for the purpose of investigating any offence under this Act or under any other law for the time being in force dealing with sexual exploitation of persons and committed in more than one State appoint such number of police officers as trafficking police officers and they shall exercise all the powers and discharge all the functions as are exercisable by special police officers under this Act with the modification that they shall exercise such powers and discharge such functions in relation to the whole of India.

14. Offences to be cognizable.—Not with standing anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under this Act shall be deemed to be a cognizable offence within the meaning of that Code:10Provided that, notwithstanding anything contained in that Code,— (i) arrest without warrant may be made only by the special police officer or under his direction or guidance, or subject to his prior approval;

(ii) when the special police officer requires any officer subordinate to him to arrest without warrant otherwise than in his presence any person for an offence under this Act, he shall give that subordinate officer an order in writing, specifying the person to be arrested and the offence for which the arrest is being made; and the latter officer before arresting the person shall inform him of the substance of the order and, on being required by such person, show him the order; (iii) any police officer not below the rank of sub-inspector specially authorised by the special police officer may, if he has reason to believe that on account of delay involved in obtaining the order of the special police officer, any valuable evidence relating to any offence under this Act is likely to be destroyed or concealed, or the person who has committed or is suspected to have committed the offence is likely to escape, or if the name and address of such a person is unknown or there is reason to suspect that a false name or address has been given, arrest the person concerned without such order, but in such a case he shall report, as soon as may be, to the special police officer the arrest and the circumstances in which the arrest was made. 15. Search without warrant .—(1) Notwithstanding anything contained in any other law for the time being in force, whenever the special police officer or the trafficking police officer as the case may be, has reasonable grounds for believing that an offence punishable under this Act has been or is being committed in respect of a person living in any premises, and that search of the premises with warrant cannot be made without undue delay, such officer may, after recording the grounds of his belief, enter and search such premises without a warrant.

(2) Before making a search under sub-section (1), the special police officer or the trafficking police officer, as the case may be shall call upon two or more respectable inhabitants (at least one of whom shall be a woman) of the locality in which the place to be searched is situate, to attend and witness the search and may issue an order in writing to them or any of them so to do: Provided that the requirement as to the respectable inhabitants being from the locality in which the place to be searched is situate shall not apply to a woman required to attend and witness the search.

(3) Any person who, without reasonable cause, refuses or neglects, to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860).

(4) The special police officer or the trafficking police officer, as the case may be, entering any premises under sub-section (1) shall be entitled to remove therefrom all the persons found therein. 11

(5) The special police officer or the trafficking police officer, as the case may be, after removing person under sub-section (4) shall forthwith produce her before the appropriate Magistrate. (5-A) Any person, who is produced before a Magistrate under sub-section (5), shall be examined by a registered medical practitioner for the purposes of determination of the age of such person, or for the detection of any injuries as a result of sexual abuse or for the presence of any sexually transmitted diseases. Explanation.—In this sub-section, “registered medical practitioner” has the same meaning as in the Indian Medical Council Act, 1956 (102 of 1956).(6) The special police officer or the trafficking police officer, as the case may be, and other persons taking part in, or attending, and witnessing a search shall not be liable to any civil or criminal proceeding against them in respect of anything lawfully done in connection with, or for the purpose of, the search.

(6-A) The special police officer or the trafficking police officer, as the case may be, making a search under this section shall be accompanied by at least two women police officers, and where any woman or girl removed under sub-section (4) is required to be interrogated it shall be done by woman police officer and if no woman police officer is available, the interrogation shall be done only in the presence of a lady member of a recognised welfare institution or organization. Explanation.—For the purposes of this sub-section and Section 17-A, “recognised welfare institution or organisation” means such institution or organisation as may be recognised in this behalf by the State Government.

(7) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall, so far as may be, apply to any search under this section as they apply to any search made under the authority of a warrant issued under 94 of the said Code. 16. Rescue of person—(1) Where a Magistrate has reason to believe from information received from the police or from any other person authorised by State Government in this behalf or otherwise, that any person is living, or is carrying, or is being made to carry on, prostitution in a brothel, he may direct a police officer not below the rank of a sub-inspector to enter such brothel, and to remove there from such person and produce her before him. (2) The police officer, after removing the person shall forthwith produce her before the Magistrate issuing the order.

(1) When the special police officer removing a person under sub-section (4) of Section 15 or a police officer rescuing a person under sub-section (1) of Section 16, is for any reason unable to produce her before the appropriate Magistrate as required by sub-section (5) of Section 15, or before the Magistrate issuing the order under sub-section (2) of Section 16, he shall forthwith produce her before the nearest Magistrate of any class, who shall pass such orders as he deems 12proper for her safe custody until she is produced before the appropriate Magistrate, or, as the case may be, the Magistrate issuing the order:

Provided that no person shall be, (i) detained in custody under this sub-section for a period exceeding ten days from the date of the order under this sub-section; or (ii) restored to or placed in the custody of a person who may exercise a harmful influence over her. (2) when the person is produced before the appropriate Magistrate under sub-section (5) of Section 15 or the Magistrate under sub-section (2) of Section 16, he shall, after giving her an opportunity of being heard, cause an inquiry to be made as to the correctness of the information received under sub-section (1) of Section 16, the age, character and antecedents of the person and the suitability of her parents, guardian or husband for taking charge of her and the nature of the influence which the conditions in her home are likely to have on her if she is sent home, and, for this purpose, he may direct a Probation Officer appointed under the Probation of Offenders Act, 1958, to inquire into the above circumstances and into the personality of the person and the prospects of her rehabilitation.

(3) The Magistrate may, while an inquiry is made into a case under sub-section (2), pass such orders as he deems proper for the safe custody of the person:

Provided that where a person rescued under Section 16 is a child or minor, it shall be open to the magistrate to place such child or minor in any institution established or recognised under any Children Act for the time being in force in any State for the safe custody of children:

Provided further that no person shall be kept in custody for this purpose for a period exceeding three weeks from the date of such an order, and no person shall be kept in the custody of a person likely to have a harmful influence over her.(4) Where the Magistrate is satisfied, after making an inquiry as required under sub-section (2),— (a) that the information received is correct; and (b) that she is in need of care and protection, he may, subject to the provisions of sub-section (5), make an order that such person be detained for such period, being not less than one year and not more than three, as may be specified in the order, ina protective home, or in such other custody, as he shall, for reasons to be recorded in writing, consider suitable:

Provided that such custody shall not be that of a person or body of persons of a religious persuasion different from that of the person, and that those entrusted with the custody of the 13person, including the persons in charge of a protective home; may be required to enter into a bond which may, where necessary and feasible contained undertaking based on directions relating to the proper care, guardianship, education, training and medical and psychiatric treatment of the person as well as supervision by a person appointed by the Court, which will be in force for a period not exceeding three years.

(5) In discharging his functions under sub-section (2), a Magistrate may summon a panel of five respectable persons, three of whom shall, wherever practicable, be women, to assist him; and may, for this purpose, keep a list of experienced social welfare workers, particularly women social welfare workers, in the field of suppression of immoral traffic in persons. (6) An appeal against an order made under sub-section (4) shall lie to the Court of Session whose decision on such appeal shall be final.

17-A. Conditions to be observed before placing persons rescued under Section 16 to parents or guardians .—Notwithstanding anything contained in sub-section (2) of Section 17, the magistrate making an inquiry under Section 17, may, before passing an order for handing over any person rescued under Section 16 to the parents, guardian or husband, satisfy himself about the capacity or genuineness of the parents, guardian or husband to keep such person by causing an investigation to be made by a recognised welfare institution or organisation.

18. Closure of brothel and eviction of offenders from the premises .—(1) A Magistrate may, on receipt of information from the police or otherwise, that any house, room, place or any portion thereof within a distance of two hundred metres of any public place referred to in sub-section (1) of Section 7 is being run or used as a brothel by any person, or is being used by prostitutes for carrying on their trade, issue notice on the owner, lessor or landlord or such house, room, place or portion or the agent of the owner, lessor or landlord or on the tenant, lessee, occupier of, or any other person in charge of such house, room, place, or portion, to show cause within seven days of the receipt of the notice why the same should not be attached for improper use thereof, and if, after hearing the person concerned, the Magistrate is satisfied that the house, room, place or portion is being used as a brothel or for carrying on prostitution, then the Magistrate may pass orders,— (a) directing eviction of the occupier within seven days of the passing of the order from the house, room, place, or portion; (b) directing that before letting it out during the period of one year or in a case where a child or minor has been found in such house, room, place or portion during a search under Section 15, during the period of three years, immediately after the passing of the order, the owner, lessor or landlord or the agent of the owner, lessor or landlord shall obtain the previous approval of the Magistrate;

Provided that, if the Magistrate finds that the owner, lessor or landlord as well as the agent of the owner, lessor or landlord, was innocent of the improper user of the house, room, place, or portion, he may cause the same to be restored to the owner, lessor or landlord or the agent of the owner, lessor landlord, with a direction that the house, room, place or portion shall not be leased 14out, or otherwise given possession of, to or for the benefit of the person who was allowing the improper use therein.

(2) A court convicting a person of any offence under Section 3 or Section 7 may pass orders under sub-section (1), without further notice to such person to show cause as required in that sub-section.

(3) Orders passed by the Magistrate or court under sub-section (1) or sub-section (2), shall not be subject to appeal and shall not be stayed or set aside by the order of any court, civil or criminal, and the said orders shall cease to have validity after the expiry of one year or three years, as the case may be: Provided that where a conviction under Section 3 or Section 7 is set aside on an appeal on the ground that such house, room, place, or any portion thereof is not being run or uses as a brothel or is not being used by prostitutes for carrying on their trade, any order passed by the trial court under sub-section (1) shall also be set aside.

(4) Notwithstanding anything contained in any other law for the time being in force, when a Magistrate passes an order under sub-section (1), or a Court passes an order under sub-section (2), any lease or a agreement under which the house, room, place or portion is occupied at the time shall become void and inoperative.

(5) When an owner, lessor or landlord, or the agent of such owner, lessor or landlord fails to comply with a direction given under clause (b) of sub-section (1) he shall be punishable with fine which may extend to five hundred rupees or when he fails to comply with a direction under the proviso to that sub-section, he shall be deemed to have committed an offence under clause (b) of sub-section (2), of Section 3 or clause (c) of sub-section (2) of Section 7, as the case may be, and punished accordingly.

19. Application for being kept in a protective home or provided care and protection by court.—(1) A person who is carrying on, or is being made to carry on prostitution, may make an application, to the Magistrate within the local limits of whose jurisdiction she is carrying on, or isbeing made to carry on prostitution, for an order that she may be— (a) kept in a protective home, or

(b) provided care and protection by the court in the manner specified in sub-section (3). (2) The Magistrate may pending inquiry under sub-section (3) direct that the person be kept in such custody as he may consider proper, having regard to the circumstances of the case. (3) If the Magistrate after hearing the applicant and making such inquiry as he may consider necessary, including an inquiry by a Probation Officer appointed under the Probation of Offender Act, 1958, (20 of 1958) into the personality, conditions of home and prospects of rehabilitation of the applicant, is satisfied that an order should be made under this section, he shall for reasons to be recorded, make an order that the applicant to be kept: 15

(i) in a protective home, or

(ii) in a corrective institution, or

(iii) under the supervision of a person appointed by the Magistrate for such period as may be specified in the order.

20. Removal of prostitute from any place.—(1) A Magistrate on receiving information that any person residing in or frequenting any place within the local limits of his jurisdiction is a prostitute, may record the substance of the information received and issue a notice to such person requiring her to appear before the Magistrate and show cause why she should not be required to remove herself from the place and be prohibited form re-entering it.

(2) Every notice issued under sub-section (1) shall be accompanied by a copy of the record aforesaid, and the copy shall be served along with the notice on the person against whom the notice is issued. (3) The Magistrate shall, after the service of the notice referred to in sub-section (2), proceed to inquire into the truth of the information received, and after giving the person an opportunity of adducing evidence; take such further evidence as he thinks fit and if upon such inquiry it appears to him that such person is a prostitute and that it is necessary in the interest of the general publicthat such person should be required to remove herself there from and be prohibited from reentering the same, the Magistrate shall, by order in writing communicate to the person in the manner specified therein, require her after a date (to be specified in the order) which shall not be less than seven days from the date of the order, to remove herself from the place to such place whether within or without the local limits of his jurisdiction, by such route or routes and within such time as may be specified in the order and also prohibit her from re-entering the place without the permission in writing of the Magistrate having jurisdiction over such place.

(4) Whoever,— (a) fails to comply with an order issued under this section, within the period specified therein, or whilst an order prohibiting her from re-entering a place without permission is in force, re-enters the place without such permission, or

(b) knowing that any person has, under this section, been required to remove herself from the place and has not obtained the requisite permission to re-enter it, harbours or conceals such person in the place, shall be punishable with fine which may extend to two hundred rupees and in the case of a continuing offence with an additional fine which may extend to twenty rupees for every day after the first during which she or he has persisted in the offence. 21. Protective homes.— (1) The State Government may in its discretion establish as many protective homes and corrective institutions under this Act as it thinks fit and such homes and institutions when established shall be maintained in such manner as may be prescribed. 16

(2) No person or no authority other than the State government shall, after the commencement of this Act, establish or maintain any protective home or corrective institution except under and in accordance with the conditions of, a licence issued under this section by the State Government.

(3) The State Government may, on application made to it in this behalf by a person or authority, issue to such person or authority a licence in the prescribed form for establishing and maintaining or as the case may be, for maintaining a protective home or corrective institution and a licence so issued may contain such conditions as the State Government may think fit to impose in accordance with the rules made under this Act:

Provided that any such condition may require that the management of the protective home or corrective institution shall, wherever practicable, be entrusted to women: Provided further that a person or authority maintaining any protective home at the commencement of this Act shall be allowed a period of six months from such commencement to make an application for such licence: Provided also that a person or authority maintaining any corrective institution at the commencement of the Suppression of Immoral Traffic in Women and Girls (Amendment) Act, 1978, shall be allowed a period of six months from such commencement to make an application for such licence. (4) Before issuing a licence, the State Government may require such officer or authority as it may appoint for this purpose, to make a full and complete investigation in respect of the application received in this behalf and report to it the result of such investigation and in making any such investigation the officer or authority shall allow such procedure as may be prescirbed. (5) A licence, unless sooner revoked, shall remain in force for such period as may be specified in the licence and may, on application made in this behalf atleast thirty days before the date of its expiration, be renewed for a like period.

(6) No licence issued or renewed under this Act shall be transferable.

(7) Where any person or authority to whom a licence has been granted under this Act or any agent or servant of such person or authority commits a breach of any of the conditions thereof or any of the provisions of this Act or of any of the rules made under this Act, or where the State Government is not satisfied with the conditions, management or superintendence or any protective home or corrective institution the State Government may, without prejudice to any other penalty which may have been incurred under this Act, for reasons to be recorded, revoke the licence by order in writing:

Provided that no such order shall be made until an opportunity is given to the holder of the licence to show cause why the licence shall not be revoked. 17(8) Where a licence in respect of a protective home or corrective institution has been revoked under the foregoing sub-section such protective home or corrective institution shall cease to function from the date of, such revocation. (9) Subject to any rule that may be made in this behalf, the State Government may also vary or amend any licence issued or renewed under this Act.(9-A) The State Government or any authority authorised by it in this behalf may, subject to any rules that may be made in this behalf, transfer an inmate of a protective home to another protective home or to a corrective institution or an inmate of a corrective institution to another corrective institution or to a protective home, where such transfer is considered desirable having regard to the conduct of the person to be transferred, the kind of training to be imparted and other circumstances of the case:

Provided that,— (i) no person who is transferred under this sub-section shall be required to stay in the home or institution to which she is transferred for a period longer than she was required to stay in the home or institution from which she was transferred;

(ii) reasons shall be recorded for every order of transfer under this sub-section.

(10) Whoever establishes or maintains a protective home or corrective institution except in accordance with the provisions of this section, shall be punishable in the case of a first offence with fine which may extend to one thousand rupees and in the case of second or subsequent offence with imprisonment for a term which may extend to one year, or with fine which may extend to two thousand rupees, or with both. 21-A. Production of records .—Every person or authority who is licensed under sub-section (3) of Section 21 to establish or maintain, or, as the case may be, for maintaining, a protective home or corrective institution shall whenever required by a Court, produce the records and other documents maintained by such home or institution before such court. 22. Trials .—No Court, inferior to that of a Metropolitan Magistrate or a Judicial magistrate of the first class, shall try any offence under Section 3, Section 4, Section 5, Section 6, Section 7 or Section 8. 22-A. Power to establish special Courts.—(1) If the State Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act in any district or metropolitan area, it may, by notification in the official Gazette and after consultation with the High Court, establish one or more Courts of Judicial Magistrates of the first class, or, as the case may be, Metropolitan Magistrate, in such district or metropolitan area.

(2) Unless otherwise directed by the High Court, a court established under sub-section (1) shall exercise jurisdiction only in respect of cases under this Act. 18

(3) Subject to the provisions of sub-section (2), the jurisdiction and powers of the presiding officer of a court established under sub-section (1) in any district or metropolitan area shall extend throughout the district or the metropolitan area, as the case may be.

(4) Subject to the foregoing provisions of this section, a Court established under sub-section (1) in any district or metropolitan area shall be deemed to be a court established under sub-section (1) of Section 11, or, as the case may be, sub-section (1) of Section 16 of the Code of Criminal Procedure, 1973 (2 of 1974) and provisions of the Code shall apply accordingly in relation to such courts.

Explanation.—In this section, “High Court” has the same meaning as in clause (e) of Section 2 of the Code of Criminal Procedure, 1973. [6] [22-AA. Power of Central Government to establish special courts.—(1) If the Central Government is satisfied that it is necessary for the purpose of providing for speedy trial of offences under this Act and committed in more than one State, it may, by notification in the official Gazette and after consultation with the High Court concerned, establish one or more courts of Judicial Magistrates of the first class or Metropolitan Magistrates for the trial of such offences.

(2) The provisions of Section 22-A, shall, so far as may be, apply to the courts established under sub-section (1), as they apply to Courts established under that section.

22-B. Power of court to try cases summarily .—Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the State Government may, if it considers it necessary so to do, direct that offences under this Act shall be tried in a summary way by a Magistrate including the presiding officer of a court established under sub-section (1) of Section 22-A and the provisions of Section 262 to 265 (both inclusive) of the said Code, shall, as far as may be, apply to such trial:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall, after hearing the parties record an order to that effect and thereafter recall any witness, who may have been examined and proceed to hear or re-hear the case in the manner provided by the said Code].

23. Power to make rules .—(1) The State Government may, by notification in the official Gazette, make rules for carrying on the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for : 19

(a) the notification of any place as a public place;

(b) the placing in custody of persons for whose safe custody orders have been passed under subsection (1) of Section 17 and their maintenance; (bb) the discharge of an offender under sub-section (3) of Section 10-A from a corrective institution and the form of licence to be granted to such offender; (c) the detention and keeping in protective homes or, as the case may be, in corrective institutions or person under this Act and their maintenance; (d) the carrying out of the provisions of Section 11 regarding notification of residence or change of or absence from residence by released convicts;

(e) the delegation of authority to appoint the special police officer under sub-section (1) of Section 13;

(f) the carrying into effect of the provisions of Section 18;

(g) (i) the establishment, maintenance, management and superintendence of protective homes and corrective institutions under Section 21 and the appointment, powers and duties of persons employed in such home or institution;

(ii) the form in which an application for a licence may be made and the particulars to be contained in such application;

(iii) the procedure for the issue or renewal of a licence, the time within which such licence shall be issued or renewed and the procedure to be followed in making a full and complete investigation in respect of an application for licence;

(iv) the form of a licence and the condition to be specified therein;

(v) the manner in which the accounts of a protective home and a corrective institution shall be maintained and audited;

(vi) the maintenance of registers and statements by a licensee and the form of such registers and statements;

(vii) the care, treatments, maintenance, training, instruction, control and discipline of the inmates of protective home and corrective institutions; (viii) the visits to and communications with inmates; (ix) the temporary detention of persons sentenced to detention in protective homes or in corrective institution until arrangements are made for sending them to suchhomes or institutions; 20(x) the transfer of an inmate from: (a) protective home to another, or to a corrective institution, (b) one corrective institution to another, or to a protective home, under sub-section (9-A) of Section 21; (xi) the transfer in pursuance of an order of the Court from a protective home or a corrective institution to a prison of a person found to be incorrigible or exercising bad influence upon other inmates of the protective home or the corrective institution and the period of her detention in such prison; (xii) the transfer to a protective home or corrective institution of persons sentenced under Section 7 or Section 8 and the period of their detention in such home or institution; (xiii) the discharge of inmates from a protective home or corrective institution either absolutely or subject to conditions, and their arrest in the event of breach of such conditions; (xiv) the grant of permission to inmates to absent themselves for short periods; (xv) the inspection of protective homes and corrective institutions and other institutions in which a persons may be kept, detained and maintained;

(h) any other matter which has to be, or may be prescribed.

(3) In making any rule under clause (d) or clause (g) or sub-section (2), the State Government may provide that a breach thereof be punishable with fine which may extend to two hundred and fifty rupees. (4) All rules made under this Act shall, as soon as may be after they are made, be laid before the State Legislature. 24. Act not to be in derogation of certain other Acts .—Nothing in this Act shall be construed to be in derogation of the provisions of the Reformatory Schools Act, 1897 or any State Act enacted in modification of the said Act or otherwise, relating to juvenile offenders. 25. Repeal and savings .—(1) As from the date of the coming into force in any State of the provisions other than Section 1 of this Act, all State Acts relating to suppression of immoral traffic in persons or to the prevention of prostitution, in force in that State immediately before such date shall stand repealed. (2) Notwithstanding the repeal by this Act, of any State Act referred to in sub-section (1), anything done or any action taken including any direction given in any register, rule or order made, any restriction imposed) under the provision of such State Act shall in so far as such thing or action is not inconsistent with the provisions of this Act be deemed to have been done or taken under the provisions of this Act as if the said provisions were in force when such thing was done 21or such action was taken and shall continue in force accordingly until superseded by anything done or any action taken under this Act. Explanation.—In this section, the expression `State Act `includes a `Provincial Act$. THE SCHEDULE [See Section 2(c)] Section Magistrate competent to exercise the powers7(1) District Magistrate. 11 (4) Metropolitan Magistrate of Judicial Magistrate of the first class. 12 (4) [7][* * * * * * * * * * * *] 15(5) Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Subdivisional Magistrate. 16 Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Subdivisional Magistrate. 18 District Magistrate or Sub-divisional Magistrate. 19 Metropolitan Magistrate, Judicial Magistrate of the first class, District Magistrate or Subdivisional Magistrate. 20 District Magistrate, Sub-divisional Magistrate or any Executive Magistrate specially empowered by the State Government. 22-B Metropolitan Magistrate of Judicial Magistrate of the first class. ========================== [1] Sub-section (e) omitted by Act No 46 of 1978. [2] Sub-sec. (2) omitted by Act No. 44 of 1986. [3] Sub-section (2) omitted by Act No. 44 of 1986. [4] Sec. 10 omitted by Act No. 44 of 1986. [5] Section 12 omitted by Act No. 44 of 1986. [6] Ins. by Act No. 44 of 1986 (w.e.f. 26-1-1987). [7] Figures and words omitted by Act No. 44 of 1986 (w.e.f. 2-6-1987).